Terms and Conditions

Last updated: August 15, 2024

These ProcessMaker Terms and Conditions (“Terms”) contain the terms and conditions that govern your access to and use of ProcessMaker’s Services (as defined below) and form a binding agreement between the ProcessMaker entity identified on the Order and/or the SOW (“we”, “us”, “our” or “Provider”) and you and the entity you represent identified as the “Customer” on the Order and/or the SOW (“you” or “Customer”).

If the person accepting these Terms is doing so on behalf of a company or other legal entity identified as the Customer on the applicable Order and/or SOW, such person represents that he or she has the authority to bind the Customer to these Terms. If you do not have such authority, or if you or the Customer do not agree with these Terms, you must not accept these Terms and the Customer may not use the Services.

You may not use the Services unless you are legally bound to these Terms. We reserve the right to terminate the Agreement if (A) you are not of legal age to form a binding, non-rescindable, contract with Provider; (B) when signing on behalf of an entity, you are not authorized to legally bind your company or organization to such terms; or (C) you are a person or entity barred from receiving the Services under the laws of the country of the Provider’s principal place of business or the country in which you are resident or from which you use the Services.

1. SaaS Services and Professional Services

1.1    We provide Software as a Service identified in the applicable Order (“SaaS Services”) that uses our proprietary software applications (“Software”). The SaaS Services are provided on a subscription basis during the Subscription Term (as defined in Section 10.1). We may also provide consulting, training, education, implementation, custom modification and configuration, and other works and services identified in a SOW (collectively, “Professional Services”). The SaaS Services and Professional Services are together referred to as “Services”.

1.2     These Terms are hereby incorporated into each written order entered into in writing between Customer and Provider for the provision of the SaaS Services (each an “Order”) and each Statement of Work that is entered into in writing between Customer and Provider for the provision of Professional Services (each a “SOW”) (collectively such Orders and SOWs, together with these Terms, are the “Agreement”).

1.3     Individual Orders set out the Subscription Term, scope of the SaaS Services, fees and payments terms for the SaaS Services and any other specific terms with respect to the SaaS Services, including without limitation the Usage Limits.  “Usage Limits” means the number of authorized users, number of authorized cases, or other usage limits, as set forth in the applicable Order. Individual SOWs set out the scope of Professional Services, length of the term of the SOW, fees and payments terms for Professional Services as well as any terms applicable to the Professional Services such as milestones, deliverables, schedules, acceptance criteria, etc.

1.4     If there is any conflict between an Order and/or SOW and these Terms, the documents will take precedence in the following order: these Terms, then the Order, then the SOW; provided, however, that the conflicting provision of the applicable Order or SOW shall prevail if such conflicting provision in the Order or SOW expressly indicates its intent to prevail.

2. Provision of the Services 

2.1     Provider may have subsidiaries and affiliated legal entities in other countries that may serve as subcontractors or contact points with respect to the Services provided to you by Provider. Even where Provider’s subsidiaries or affiliates are your primary contact points, the Provider listed on your Order and/or the SOW will remain ultimately responsible for the provision of the Services and you waive any right to assert claims against such other entities with respect to the Services. In addition, Provider may use services of independent service providers/contractors who may provide certain services to you on Provider’s behalf.

2.2     Provider is constantly innovating the SaaS Services to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the SaaS Services may change from time to time without prior notice to you as long as such change does not result in material degradation of the SaaS Services.

2.3     Notwithstanding anything to the contrary in Section 2.2 of these Terms, as part of this continuing innovation, you acknowledge and agree that Provider may permanently or temporarily stop providing SaaS Services (or any features within the SaaS Services) to you or to users generally at Provider’s sole discretion, upon sixty (60) days prior notice to you. If you have pre-paid the SaaS Services for a fixed period of time and (A) Provider stops providing the SaaS Services for any reason other than your material breach pursuant to Section 10.3(A) or legal requirement pursuant to Section 10.3(B); or (B) you terminate the Agreement for Provider’s material breach pursuant to Section 10.3(A); Provider will, as your sole and exclusive remedy, refund to you pro-rata the corresponding fees for Services already paid by you equivalent to the part or remainder of the term in which you will not use the Services.

2.4     You understand and agree that Provider may at its full discretion, without any liability to you and subject to giving you a prior notice, suspend access to your account for (A) delay with any payment (including delay resulting from your failure to provide billing details or failure to cooperate in order to enable Provider to issue a valid invoice within (fifteen) 15 days from the Service start date stipulated on your Order or SOW) or (B) other breach of the Agreement, and that in such case you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account. If we suspend your access to the Services for delayed payment or other breach of the Agreement, and subsequently reactivate it (e.g. after the breach has been cured), you still remain obliged to pay the Services fees for the entire Subscription Term including the period for which you could not access the Services as a result of your default; you will not be entitled to any compensation or refunds (whether monetary or in the form of an extended Subscription Term) for the period for which you could not use the Services. Such suspension of Services shall not be considered a breach of the Agreement by Provider. Further, the foregoing shall not in any way prejudice or prevent Provider from exercising its right to terminate the Agreement for material breach pursuant to Section 10.3 of the Terms.

3. Your use of the Services 

3.1     To access the SaaS Services, you or your individual end-users will be required to register into the Provider’s platform and provide identification, contact or similar details as part of the registration process for the SaaS Services or as part of your continued use of the SaaS Services.

3.2     You agree to use the Services only for purposes that are permitted by the Terms and the Order; and in accordance with (A) any applicable law and regulation in the relevant jurisdictions (including any laws regarding the export of data or software to and from the EU, the United States or other relevant countries); and (B) any other applicable rules (including, without limitation and where applicable any rules of third party platforms that integrate with the SaaS Services.

3.3     You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided directly or indirectly by Provider, unless you have been specifically allowed to do so in a separate written agreement with Provider.

3.4     You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). In particular, you agree not to engage in the following acts or cause or permit others to do so:

a) Use the Services or any Services Content or Customer Content (as defined below) to violate applicable law or the Terms or the Agreement;

b) Permit a third party to access the Services except your affiliates expressly permitted pursuant to an Order or SOW or otherwise approved in writing by the Provider;

c) Sell, resell, rent, lease, distribute, assign or otherwise transfer the rights to the Services;

d) Copy, modify, translate, or create derivative works of the Services or Services Content except as permitted in writing by Provider;

e) Use Services for timesharing or service bureau purposes or otherwise for the benefit of a third party;

f) Remove, obscure or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained in the Services or their outputs;

g) Copy, frame, or mirror the Services or any part or content of the Services or create any link to the Services;

h) Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services or Software;

i) Access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services;

j) 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 or intellectual property rights;

k) Use the Services to upload, store, transmit or distribute material containing software viruses, worms, Trojan horses or other malicious code, files, scripts, agents or programs that may damage the operation of the Services or third-party’s computer, property of information;

l) Interfere with or disrupt the integrity or performance of the Services or third-party data contained therein;

m) Perform any simulated attack, penetration test, denial of service simulation or similar vulnerability test or scan of the Services; or

n) Attempt to gain unauthorized access to the Services or their related systems or networks or unauthorized access to a third-party account or content created by or for another Provider’s customer.

3.5     The SaaS Services can be used by you only for your own internal business. You may not use the SaaS Services for the benefit of any third parties not explicitly approve in writing in the Order.

3.6     You agree that you will not engage in any activity that may amount to the misuse of the Services or that seeks to circumvent this Agreement. If Provider provides you with any portion of the Services as part of a trial, proof of concept (POC) or pilot, Provider reserves the right to limit your activity on any of its trial, POC or pilot Services for any reason and without notice.

3.7     You agree that you are solely responsible for (and that Provider has no responsibility to you or to any third party for) any breach of your obligations under the Agreement and for the consequences (including any loss or damage which Provider may suffer) of any such breach by you or your users or clients. You are responsible for all acts and omissions of each individual end-user that you permit to use the Services. The Services are a tool to make workflow management more efficient, but are not a substitute for Customer’s decision-making and judgment. You agree that you are solely responsible for your use of the Services, including all results obtained from, and all conclusions, decisions, and actions based on your and each end-user’s use of the Services.

3.8     Although the Services are provided on the cloud, the Services are not intended as a storage solution or backup of Customer Content.  Customer should store copies of all Customer Content on Customer’s systems, and Provider is not responsible for the deletion or destruction of Customer Content.

3.9     You are solely responsible for any use of any third-party products or platforms that you use in connection with the Services, including any third-party platforms or third-party products or services that may integrate with the SaaS Services (each, a “Third-Party Platform”).  Your use of a Third-Party Platform is governed by your agreement with the relevant Third-Party Platform provider and not this Agreement, and Provider is not responsible for the Third-Party Platform or the Third-Party Platform’s use of Customer Content.  You acknowledge that additional third-party fees (such as internet service provider fees, Third-Party Platform fees, third-party add-on fees or similar) may apply in connection with your use of the Services. Additional third-party fees are payable by you directly to the relevant third party and the relevant third party receiving such additional fees is responsible for the processing of such fees. Provider has no responsibility to you or to any third party for payment of any such fees or for unavailability of Services due to your failure to do so.

3.10     You acknowledge that use of the Services in breach of this Section 3 will be considered a material breach of the Agreement.

4. Your passwords and account security 

4.1     You agree and understand that you and your end-users are responsible for maintaining the confidentiality of passwords or other login credentials associated with any account you use to access the Services. Accordingly, you agree that you will be solely responsible for all activities that occur under your and Customer’s end users’ accounts.

4.2     If you become aware of any unauthorized use of your password or of your account, you agree to notify Provider immediately.

5. Fees and taxes 

5.1     The Services are provided by Provider for consideration. The fees for the Services are stipulated in your Order and/or the SOW, which also set out the payment terms. Without limiting any rights or remedies of Provider, if Customer exceeds the applicable Usage Limits, Provider may increase the fees for the applicable SaaS Services upon written notice to Customer to reflect Provider’s then-current standard rates based on Customer’s actual usage level, and such fee increase will become effective upon the sooner of the anniversary date of the Subscription Term or the next Renewal Term (as each such term is defined in Section 10.1 of these Terms).  Fees for Renewal Terms are described in Section 10.1 of these Terms.

5.2     You agree to pay the applicable fees in accordance with these Terms and the applicable Order and/or SOW. Except as otherwise specified herein or in an Order or SOW, all fees are due and payable immediately upon receipt of an invoice, payment obligations are non-cancelable and fees paid are non-refundable, and quantities purchased cannot be decreased during the relevant Subscription Term stated on the Order and/or SOW.

5.3     Fees for the SaaS Services and Professional Services will be charged upfront in accordance with the Order and/or SOW.

5.4     If any undisputed invoiced amount is not received by us by the due date, then without limiting our rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

5.5     Fees set forth in your Order and SOW exclude any and all applicable taxes, levies, duties or similar governmental assessments of any nature and similar fees (other than taxes solely based on our profit) now in force or imposed in the future on provision of the Services, including any sales, use or value added taxes, services tax or withholding tax, and you shall be responsible for payment of all such taxes and fees. If you are required by any applicable law to deduct or withhold amounts otherwise payable to us hereunder, you agree to pay the required amounts to the relevant governmental authority and pay to us, in addition to the payment to which we are otherwise entitled under the relevant Order or SOW, such additional amount as is necessary to ensure that the net amount actually received by us free and clear of all taxes equals the full amount we would have received had no such deduction or withholding been required.

5.6     No party shall have any right of holdback or set-off against any claims of the other Party under or in connection with the Agreement.

5.7     Provider is not responsible for the payment processing provided by any third party.

6. Content in the Services

6.1     You understand that the Services and all information such as, without limitation, electronic data files, written text, computer software, music, audio files or other sounds, photographs, and videos or other images, and all data and reports generated by the Services (all such information referred to in these Terms generally as the “Services Content”) which you may have access to as part of, or through your use of, the Services, in each case excluding the Customer Content (as defined below), are owned by us or a third party, and are protected under copyright, trademark, and other laws.

6.2     As between the parties, you retain ownership, copyright and any other intellectual property rights you hold in content which you, your users or third parties that you enable through your account, submit, post, or publish to us through your use of the Services (“Customer Content”).  You agree that (i) you are solely responsible for your use of the Customer Content and Provider is not responsible for your exploitation of such Customer Content; (ii) Provider has no obligation to monitor or edit your use of any Customer Content in connection with your use of the Services; and (iii) you shall be solely responsible for obtaining the necessary authorizations to use any Customer Content submitted through the Services.

6.3     You agree that you are solely responsible for (and that Provider has no responsibility to you or to any third party for) any Customer Content that you create, upload, transmit, publish or distribute while using the Services and for the consequences of your actions (including any loss or damage which Provider or third parties may incur and including any other legal liability, whether liability under civil, commercial, tort, penal or administrative law or any other legal theory) by doing so. Provider assumes no responsibility or liability for any (i) Customer Content, (ii) any content provided by any third party or through a Third-Party Platform or through any third-party pages or websites linked in the Services, or (iii) any content created or provided by third-party generative artificial intelligence solutions (“AI Solutions”) even if such AI Solution is made available to you through the Services. You shall notify us in the event that you believe that the Services infringes third-party rights such as copyright.

6.4     You shall indemnify and hold Provider harmless from all claims and all liabilities, costs, proceedings, damages and expenses awarded against, or incurred or paid by Provider as a result of or in connection with (A) your breach of any third party’s intellectual property or similar rights or (B) your breach of warranty under Section 6.5 or Section 9.4 below.

6.5     You represent and warrant to Provider that (i) you have all the rights, power and authority necessary to use any Customer Content submitted through the Services; (ii) you have the right to provide the Customer Content to Provider and for Provider to use the Customer Content in accordance with this Agreement; and (iii) Provider’s use of the Customer Content in accordance with this Agreement will not violate or infringe the privacy, publicity, intellectual property or other rights of third parties. Provider may suspend your access or access of your individual end-users to the Services if you or your end-users submit or transmit Customer Content through the Services that infringes or violates the intellectual property rights or privacy rights of third parties.

7. Proprietary rights 

7.1     You acknowledge and agree that as between you and Provider, Provider (or Provider’s licensors) owns all legal rights, title and interest in and to the Services, including without limitation any and all underlying Software, databases, including data models, structures, processes, know-how, trade secrets, methods, documentation and manuals, Services Content, data and reports generated by the Services (excluding Customer Content), Usage Data (as defined below), aggregated statistical data, and all modifications, enhancements, and customizations to the foregoing, together with all Intellectual Property Rights in the foregoing (the “Provider Property“).  For clarity, Provider Property excludes Customer Content.  For purposes of this Agreement, “Intellectual Property Rights” means all right, title, and interest in and to all patents (including patent applications), inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and/or proprietary rights.  This Agreement does not convey and right, title, or interest in the Provider Property to Customer other than the limited licenses expressly set forth in this Agreement.  In the event any ownership of the Provider Property vests in Customer, Customer agrees to assign and hereby assigns to Provider all right, title and interest worldwide in the Provider Property.  To the extent any of the rights, title and interest in and to Provider Property are found by a court of competent jurisdiction not to be assignable by Customer to Provider, Customer irrevocably agrees to grant, and hereby grants to Provider an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest, including, but not limited to, the right to make, have made, use, have used, sell, offer for sale, have sold, distribute and import, the Provider Property.

7.2     Other than the limited licenses set forth in this Agreement, Provider acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Customer Content. Unless you have agreed otherwise in writing with Provider, you agree that you are responsible for protecting and enforcing those rights and that Provider has no obligation to do so on your behalf.

7.3     Unless you have been expressly authorized to do so in writing by Provider, you agree that, in connection with the Services, you will not use any trademark, service mark, trade name, logo of any third-party company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.

8. License from Provider 

8.1     Provider grants you a worldwide, non-assignable and non-exclusive right and license to access and use the SaaS Services, on a subscription basis, during the Subscription Term, up to the Usage Limits set forth in your Order, subject to any other parameters stipulated in your Order. Any SaaS Services unused during your Subscription Term (including but not limited to situations where you do not use the prepaid SaaS Services in full scope or if you do not use the prepaid SaaS Services for the full duration of the Subscription Term) shall expire at the end of the Subscription Term and cannot be transferred to consecutive terms or be refunded. To the extent Provider provides any documentation to you, you may use the documentation internally solely during your Subscription Term to support your use of the SaaS Services, and the documentation provided by Provider shall be deemed to be part of the SaaS Services.

8.2     The license granted in this Section 8 is for the sole purpose of enabling you to use and enjoy the benefits of the SaaS Services as provided by Provider for your internal business purposes, in the manner permitted by these Terms (in particular Section 3) and the Order and/or SOW. You may not use the Services for the benefit of any third parties unless they are explicitly listed in the relevant Order or SOW or otherwise approved in writing by Provider. You acknowledge that this is a SaaS agreement and that (A) the Software is not sold, and (B) unless expressly authorized in an Order you do not have the right to access copies of the Software to you as part of the Services.

8.3     Unless Provider has given you specific written permission to do so or as permitted by Section 16.11, you may not assign (or grant a sublicense of) your rights, grant a security interest in or over your rights, or otherwise transfer any part of your rights granted hereunder.

8.4     You acknowledge that any breach of Section 8 by you or your end-users shall constitute a material breach of the Agreement, with all consequences arising therefrom.

9. Use of Customer Content

9.1     You hereby grant Provider and its subcontractors a non-exclusive, worldwide, and royalty-free license during the term of this Agreement to use and disclose such Customer Content (including any third-party content submitted by you through the Services) to the extent necessary to provide the Services to you pursuant to this Agreement, and as required by applicable law. This license includes the right to access, use, and disclose such Customer Content in the manner permitted by this Agreement.

9.2     We also may collect and analyze information relating to the performance and use of the Services by Customer and its users or any other person, including but not limited to usage information, user IDs, user type, number of cases started or documents uploaded, session information, statistical information, and information based on or derived from the foregoing, but in each case excluding Customer Content (“Usage Data”).  Provider shall be free during and after the term of this Agreement to (i) use such Usage Data internally for product improvement and product development purposes, for operational and diagnostic purposes, and for such other purposes as permitted by law including benchmarking; and (ii) to disclose such Usage Data provided that such Usage Data is de-identified so that it does not identify the Customer, its users or any other person and is aggregated with data of other customers.

9.3     You may choose to share any ideas, feedback or suggestions regarding the Services (“Feedback”) with us. To the extent you provide any Feedback to us, you hereby grant us a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license (with the right to grant sublicenses) to use, make, sell and otherwise exploit in any manner such Feedback without payment of any compensation to you or any obligation of confidentiality to you.

9.4     You represent and warrant to Provider that you have all rights, consents, powers and authority necessary to grant the licenses and permissions set forth in this Article 9.

10. Term; Renewals; Termination 

10.1     The initial term for your subscription to access the SaaS Services is the subscription term set forth in the applicable Order (“Initial Subscription Term”), provided that if the Order does not define the Initial Subscription Term, the Initial Subscription Term is one year from the effective date of the Order.  Except as otherwise specified in the Order, the Initial Subscription Term will automatically renew for successive periods of twelve (12) months each (each, a “Renewal Term”, and collectively with the Initial Subscription Term, the “Subscription Term”), unless either party provides notice of non-renewal to the other party at least sixty (60) days prior to the end of the then-current Subscription Term.  All changes to the fees required for a Renewal Term will be invoiced in advance prior to expiration of the then current Subscription Term (the “Renewal Invoice”), and any pricing or changes to the Usage Limits for such Renewal Term will be reflected in the Renewal Invoice. Fees for all renewals after the Initial Subscription Term shall be set at the then-current Provider pricing, and will increase by  7% per Renewal Term, unless otherwise stated on the Order, Renewal Invoice, or as otherwise agreed to in writing by the parties, and is subject to additional price increases due to Customer exceeding the Usage Limits as set forth in Section 5.1.  These Terms will continue to apply during the Subscription Term and any term stipulated in your SOW.

10.2     During the Subscription Term or the term stipulated in your SOW, as applicable, each party may only terminate the Agreement (including the applicable Order or SOW) for reasons stipulated in Section 10.3.

10.3     Each of the parties may at any time terminate the Agreement (including any Order and SOW) if  (A) the other party has materially breached any provision of the Agreement and failed to cure the breach (where such breach is capable of being cured) within thirty (30) days following receipt of notice of such breach; or (B) a party is required to do so by law (for example, where the performance of the Agreement is or becomes unlawful); in addition, Provider may at any time terminate the Agreement.  Provider may terminate this Agreement at any time if (C) the partner with whom Provider offered the Services to you, or whom Provider uses or whose cooperation Provider needs in order to offer the Services to you (such as the hosting provider), has terminated its relationship with Provider or ceased to offer its APIs, data, programs, application or services that are essential for the Services; or (D) Provider is transitioning to no longer providing the Services to users in the country in which you reside or from which you use the Services; or (E) the provision of the Services to you by Provider is, in Provider’s opinion, no longer commercially viable. For the purposes of the Agreement, your failure to make timely payments under the Agreement when due will be considered a material breach of the Agreement. In the event you terminate the Agreement for a material breach by Provider as described in (A) above, or if Provider terminates the Agreement during the term for reasons stipulated in (C), (D) or (E) above, you shall not be required to make any payments for Services beyond the date of when Provider terminates the Agreement or when Provider ceased to provide the Services (as applicable), and in the event you prepaid the Services, Provider shall in such cases refund the pro-rata proportion of the pre-paid fee for the unused portion of the term.

10.4     Upon termination or expiration of this Agreement or the applicable Order or SOW, Customer shall immediately discontinue use of the Services.  Customer is responsible for downloading all Customer Content prior to the termination or expiration of this Agreement or the applicable Order, and Provider shall have no obligation to retain any Customer Content or configurations or implementations following the termination or expiration of this Agreement or the applicable Order.  Upon expiration or termination of this Agreement, all provisions necessary to enforce a party’s rights and obligations under this Agreement, and other provision that by its nature survive, shall survive the termination or expiration of this Agreement.  The provisions of Section 16.9 shall continue to apply to such rights, obligations and liabilities indefinitely.

11. Limited Warranties; Exclusions 

11.1     Services features that interoperate with Third-Party Platforms depend on the continuing availability of those Third-Party Platforms for use with the Services. If any Third-Party Platform ceases to make its Third-Party Platform available on reasonable terms for the Services, Provider may cease providing such Services features upon reasonable prior written notice to you pursuant to Section 10.3 (C). Provider is not liable or responsible for the quality, accuracy or truthfulness of services or information obtained by Customer from any third parties or Third-Party Platforms or services and used within the Services or for interruption of access to such information caused by downtime or unavailability of the Third-Party Platforms or services.

11.2     EXCEPT FOR ANY WARRANTY EXPRESSLY PROVIDED IN THESE TERMS, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND PROVIDER, ITS SUBSIDIARIES AND AFFILIATES, AND LICENSORS MAKE NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND DOES NOT REPRESENT OR WARRANT TO YOU THAT (A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR BE COMPATIBLE WITH ANY OTHER SOFTWARE SYSTEM OR SERVICE; (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE USED TO PROVIDE THE SERVICES WILL BE CORRECTED.

11.3     NO CONDITIONS, WARRANTIES OR OTHER TERMS (INCLUDING ANY IMPLIED TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE, MERCHANTABILITY OR NONINFRINGEMENT) APPLY TO THE SERVICES EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY SET OUT IN THE AGREEMENT.

11.4     Nothing in the Terms shall affect those statutory rights that you cannot contractually agree to alter or waive.

11.5     Professional Services Warranty. Professional Services will be performed in a professional manner consistent with generally accepted industry standards. Unless provided otherwise in an SOW, this warranty shall be valid for seventy-five (75) days from the date the Professional Services are delivered, which includes a fifteen (15) day review period. Customer’s sole and exclusive remedy and our sole and exclusive liability shall be the re-performance of the Professional Services.

11.6     The Services are accessed using a web browser and their compatibility is only guaranteed with the then-current version and one immediately preceding version of the following web browsers: Google Chrome, Firefox, Microsoft Edge, Apple Safari and Opera.

11.7     Early Access. Upon your request, Provider may enable you to access a dedicated section on Provider’s platform with Services features and functionalities that are in development and/or testing phase and are not released as a part of the commercial Services offering (“Early Access Services”). You understand, acknowledge and agree, that: (i) Provider may discontinue and stop providing any  Early Access Services at any time at its discretion and without prior notice to you, (ii) the Early Access Services may contain bugs, defects and errors and Provider has no obligation under the Agreement or otherwise to correct any bugs, defects or errors in the Early Access Services or otherwise to support or maintain the Early Access Services and to the extent permitted under applicable law shall not be liable to you for any loss or damage arising from or connected with your use of the Early Access Services; (iii) the version of the applicable Early Access Service feature that Provider may make commercially available following the early access phase (“Commercial Release”) may or may not, based solely on Provider’s discretion, contain the functionality or functions originally included in the Early Access Services, and the Commercial Release may contain functions and functionality, and perform in a manner significantly different from the Early Access Services features and functionalities made available to you; (iv) Content submitted to Early Access Services may not be secured and Provider shall have no liability with respect to any security incident or any third party’s unauthorized access to or use of Customer Content arising from the Early Access Services; and (iv) the performance of the Early Access Services is not subject to Schedule A – Service Level Agreement. Accordingly, the use of and any research or development performed, or business plans made by you regarding, or in reliance upon, the Early Access Services are entirely at your own risk.

11.8     AI-Generated Content. Certain features of the Services may use third-party generative AI Solutions, i.e., automated tools that provide information or generate text based on their programming and training data. You acknowledge that any content generated by using such third-party AI Solutions: (i) may contain incorrect elements, including but not limited to biases and/or offensive language; (ii) is based on the data and programming used to train the model; this means that third-party generative AI Solutions, its licensors, and Provider assume no liability for any content generated by third-party AI Solutions and any use or publication thereof.

12. Indemnification 

12.1     We will defend any action brought by a third party against Customer to the extent that the action is based on a claim that a Service provided by Provider to Customer, and as used within the scope of the Agreement, directly infringes such third party’s intellectual property rights, and we shall hold Customer harmless from any liability for any costs and damages ordered by a court as a result of such action or resulting from a monetary settlement thereof, provided that (A) Customer notifies us immediately in writing of the action (and all prior claims relating to such action), (B) we are given sole control of the defense and all negotiations for settlement or compromise of the action provided it releases Customer of all liability, and (C) Customer reasonably cooperates with us in such defense, including without limitation making available to us all relevant documents and other information in Customer’s possession and by making Customer personnel available to testify or to consult with us or our attorneys. We will have no obligation to indemnify the Customer for any third-party software or Third-Party Platform procured by Customer. Any claims against Provider based on this Section must be brought within one (1) year from the expiry or termination of this Agreement.

12.2     Customer shall defend us and our affiliates against any claim, demand, suit or proceeding made or brought against us or our affiliates by a third party arising from claims (i) that Provider’s or its affiliates’ or service providers’ transmission, use, or hosting of Customer Content in accordance with this Agreement, infringes or misappropriates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; or (ii) arising from Customer’s breach of the Agreement or violation of applicable law; and Customer shall indemnify us and our affiliates for any damages, attorney fees and costs incurred in connection therewith; provided we promptly give Customer written notice of the claim, demand or notice of suit or proceeding brought against us (provided that Customer may not settle the claim against us unless it releases us of all liability) and provide Customer with reasonable assistance at Customer expense.

12.3     We will have no liability or obligation under Section 12.1 (i) with respect to any infringement or misappropriation claim based upon or arising from: (A) any use of the Services not in accordance with the Agreement or for purposes not intended by us; (B) any use of the Services in combination with other products, equipment, software or data not supplied by us; (C) any modification of the Services made by any person other than us where such modification is not authorized by us; or (D) any use of the SaaS Services other than the most current version made available to Customer; or (ii) arising from Customer’s breach of the Agreement or claims which Customer is required to indemnify Provider pursuant to this Agreement.

12.4     If the Services are likely to become the subject of an infringement or misappropriation claim, we may, at our sole option and expense, either: (A) procure for Customer the right to continue to use the said Services pursuant to the Agreement; or (B) replace or modify said Services to make them non-infringing; or (C) terminate the applicable Order and/or SOW and Customer right to use the Services, and refund to Customer any unused pre-paid fees for said Services as of the date of termination. SECTIONS 12.1, 12.3 AND 12.4 STATE OUR ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS AND ACTIONS BASED ON ANY SERVICES OR PRODUCTS PROVIDED BY US.

13. Disclaimers; Limitation of liability 

13.1     Nothing in the Agreement shall exclude or limit Provider’s or Customer’s liability for losses which may not be lawfully excluded or limited by applicable law.

13.2     Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER, ITS SUBSIDIARIES AND AFFILIATES, OR LICENSEES, BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY (INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE), FOR (a) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, ENHANCED OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES), OR (b) DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF GOODWILL, LOSS OR INABILITY TO USE DATA, LOSS OF BUSINESS INFORMATION, OR COST OF REPLACEMENT GOODS OR SERVICES; OR (c) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CUSTOMER CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES, YOUR FAILURE TO PROVIDE PROVIDER WITH ACCURATE ACCOUNT INFORMATION; OR YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; IN EACH CASE OF (a), (b), (c) ABOVE, REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR WHETHER SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

13.3     Limitation of Liability.  EXCEPT FOR LIABILITIES ARISING OUT OF PROVIDER’S BREACH OF THE OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 15 (THE “EXCLUDED CLAIMS”), IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER AND ITS SUBSIDIARIES AND AFFILIATES, LICENSORS, SERVICES PROVIDERS AND SUPPLIERS ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO PROVIDER FOR THE SERVICES GIVING RISE TO THAT LIABILITY DURING THE TWELVE MONTHS IMMEDIATELY BEFORE THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER AND ITS SUBSIDIARIES AND AFFILIATES, LICENSORS, SERVICES PROVIDERS AND SUPPLIERS ARISING OUT OF THE EXCLUDED CLAIMS, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED TWO HUNDRED FIFTY THOUSAND U.S. DOLLARS (US$250,000).

14. Professional Services 

14.1     This Section shall apply only if the parties have agreed that we will provide Professional Services to Customer as indicated on an SOW. Customer shall provide us with all information, access, and full good faith cooperation necessary to provide Customer with Professional Services and shall fulfill what is identified on the SOW as Customer’s responsibility. If Customer fails or delays performance, we will be relieved of all obligations to the extent that the obligations are dependent upon such performance. You will reimburse us for all actual and reasonable travel and out-of-pocket expenses incurred as a result of any Professional Services provided.

15. Confidentiality 

15.1     Definition of Confidential Information. As used herein, “Confidential Information” means all information disclosed by or on behalf of a party to this Agreement or its affiliates (“Disclosing Party”) to the other party or its affiliates (“Receiving Party”), whether orally or in writing, that is designated as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Provider includes information relating to the Services Content, Provider’s technology, trade secrets, know-how, business plans, customers and pricing information.  Confidential Information of Customer includes the Customer Content.  Except as expressly authorized, the Receiving Party will hold in confidence and not use or disclose any Confidential Information of the other party except as necessary to exercise its rights and obligations under this Agreement or as otherwise expressly permitted by this Agreement. However, Confidential Information shall not include any information that (A) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (B) was rightfully in its possession or known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (C) is rightfully received by a third party without breach of any confidentiality obligation; or (D) was independently developed by the Receiving Party without use of or reference to the Confidential Information of Disclosing Party.

15.2     Except as may be required by applicable law or regulation or as otherwise authorized by this Agreement, the Receiving Party shall not disclose any Confidential Information of the Disclosing Party to any third party other than its agents, affiliates employees, permitted subcontractors, representatives and professional advisors of the Receiving Party and/or its affiliates (“Representatives”) who have a need to know such Confidential Information for purposes of the Agreement and who are bound by written obligations of confidentiality at least as restrictive as set forth in this Agreement; provided that Receiving Party shall be responsible for any breach of this Article 15 by its Representatives.

15.3     The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

15.4     The obligations of confidentiality and non-use set forth in this Article 15 shall survive for five (5) years following termination or expiration of this Agreement, provided that to the extent any Confidential Information is deemed to be a “trade secret” under applicable law, the obligations of confidentiality and non-use shall continue to survive for so long as such Confidential Information retains its status of a trade secret under applicable law.

16. General provisions 

16.1     The Agreement constitutes the entire agreement between you and Provider and governs your use of the Services (excluding any services which Provider may provide to you under a separate written agreement), and completely replaces any prior agreements between you and Provider in relation to the Services.

16.2     Any changes to the Agreement shall be made by a written amendment and shall be effective once both parties have signed such amendment.

16.3     You agree that Provider may provide you with notices by email or regular mail; technical notices may be posted on the Services website. All legal notices addressed to Provider shall be in writing and shall be sent via certified or registered mail (with a copy sent via e-mail), return receipt requested, or overnight courier service. Notices shall be addressed to ProcessMaker Inc., 103 West Main Street, Mezzanine Floor, Durham, North Carolina 27701, United States and an e-mail copy (which shall not constitute notice) to [email protected].

16.4     We and our affiliates may identify you as Provider’s customer and display your logo in our marketing materials (including but not limited to those published on websites and social media platforms) and in the course of our sales and promotional activities. With your approval, we may also issue a press release or customer success story identifying you as our customer and describing your utilization and benefits that you receive from the use of our products and services. The content of any press release, success story or public promotional material shall be subject to your prior approval.

16.5     You understand and acknowledge that we may be subject to laws and regulations that prohibit export or diversion of certain software and technology to certain countries (“Export Laws”). You will comply with the Export Laws in effect from time to time as they relate to all aspects of these Terms and our Services and Software.

16.6     Except for performance of a payment obligations, neither party will be responsible for any failure to perform or delay in performing any of its obligations under the Terms where and to the extent that such failure or delay results directly or indirectly from an event beyond such party’s reasonable control, including an act of God, war, hostility (whether declared or undeclared), terrorism, revolution, insurrection, riot or any other unlawful act, strike, lockout or other industrial disturbance, fire, flood, earthquake, natural disaster, power failure, internet service provider failure, embargo, or other government action (“collectively, Force Majeure Event”).

16.7     The parties agree that if one of them does not exercise or enforce any legal right or remedy which is contained in the Terms (or which such party has the benefit of under any applicable law), this will not be taken to be a formal waiver of such party’s rights and that those rights or remedies will still be available to it.

16.8     If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.

16.9     This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of, or relate to this Agreement, shall be governed by, and construed and enforced in accordance with the internal laws of the State of Delaware, including its statute of limitations, and any applicable federal laws of the United States, without regard to conflict of law principles thereunder.  The parties agree that the state or Federal courts located within the State of Delaware, USA, shall have the sole and exclusive jurisdiction to resolve any legal matters based upon, arising from, or relating to this Agreement, and Customer and Provider hereby irrevocably submit to the personal jurisdiction of such courts. The Parties hereby waive any objection to venue as specified herein, and hereby consent to and agree to submit to the jurisdiction of the courts as specified herein and agree to accept service of process to vest personal jurisdiction over them in any of the courts as specified herein.

16.10     EACH PARTY HEREBY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR ANY ORDER OR SOW CONCLUDED UNDER THIS AGREEMENT.

16.11     Neither Party may assign this Agreement or any of its rights nor delegate any of its obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld; provided that Provider may without the consent of Customer: (i) use subcontractors and independent service providers/contractors to deliver Services; (ii) make an assignment to its Affiliates; or (iii) make an assignment or to a successor to substantially all of the business of Provider, whether by merger, sale of stock, sale of assets or other transaction.  Any unauthorized assignment of this Agreement will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefits of the Parties, their respective successors and permitted assigns.

16.12     Provider and Customer are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties.  There are no third party beneficiaries to this Agreement.

16.13     These Terms are provided in English. If Provider has provided you with a translation of the English language version of the Terms or the Agreement, you agree that the translation is provided only for your convenience, and that the English language versions of the Agreement will govern your relationship with Provider. If there is any contradiction between the English language version of this Agreement and the translation, the English language version shall take precedence.

16.4     Schedules, Appendices and Annexes to these Terms are hereby incorporated into these Terms and binding on both parties, including without limitation

Schedule A – Service Level Agreement.

SUMMARY OF SUPPORT SERVICES BY PLAN TYPE:

Provider will use commercially reasonable efforts to provide support to Customer in accordance with this Schedule A based on the plan type selected in the applicable Order.

Error Correction and Bug Fixes.

Customer must submit support requests for Errors through the designated web portal or by email to [email protected].  “Error(s)” means the failure of the SaaS Service to perform in substantial compliance with the documentation provided by Provider. Errors shall exclude any events caused by Customer’s unauthorized modification of the Software or SaaS Services or improper operation by Customer. If Errors are found in the program logic of the SaaS Services, then Provider will use commercially reasonable efforts correct such Errors in accordance with the following:

System Availability.  The following definitions shall apply to this “System Availability” Section.

“Available” means that the SaaS Services are available for access and use by Customer over the internet.

“Downtime” means the number of minutes within a calendar month during which the SaaS Services are not Available for thirty (30) or more consecutive minutes as measured by Provider’s standard monitoring tools, calculated beginning from the time Provider receives notice from Customer that the SaaS Services are not Available, but excluding any period that the SaaS Services are not Available due to Scheduled Downtime, Maintenance Outages, or Excluded Events (as each is defined below).

“Excluded Event” means any period in which the services are not Available or the inability of the Customer or its end users to access or use the SaaS Services due, in whole or in part, to: (a) any act or omission, delay, or breach of this Agreement by Customer or any end user; (b) Customer’s or the end user’s internet connectivity, (c) a Force Majeure Event; (d) any failure, interruption, outage, or other problem with the internet, any software, hardware, system, network, facility, or other matter not supplied by Provider pursuant to this Agreement, or due to a third party hosting provider (such as AWS); (e) any virus, malicious code, or denial of service attack; or (f) Provider’s suspension or termination of the SaaS Services or Agreement as otherwise permitted by this Agreement (including for Customer’s breach of the Agreement).

“Maintenance Outages” means (a) planned maintenance outages outside of the Scheduled Downtime where Provider provides Customer with notification via e-mail for such planned maintenance outage at least one (1) business day in advance; or (b) emergency maintenance outages that that are required to be performed as soon as reasonably possible (including to prevent degradation or to remediate security vulnerabilities) where circumstances may require that advanced notice is not practicable.

Scheduled Available Time” means twenty-four (24) hours a day, seven (7) days a week.

“Scheduled Downtime” means a weekly window on Saturday night starting at 5 pm until 8 am Sunday morning GMT-5 which is the time period identified by Provider in which it intends to perform any planned upgrades and/or maintenance on the Service or related systems.  

“Uptime Percentage” means (the total number of minutes of Scheduled Available Time for a calendar month minus the number of minutes of Downtime suffered in such calendar month), divided by the total number of minutes of Scheduled Available Time for such calendar month, multiplied by 100.

Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the SaaS Services Available when hosted in SaaS public or private cloud by Provider, with an Uptime Percentage of 99.5% per calendar month, commencing at the time the SaaS Services are fully implemented for Customer (the “Availability Threshold”). The Availability Threshold shall be prorated for any partial months in which Customer receives SaaS Services.

In the event that Provider fails to meet the Availability Threshold in a calendar month, Customer may request a service credit from Provider in the amount of the applicable Service Credit that corresponds with the actual Uptime Percentage for such calendar month, as set forth in the table below (a “Service Credit”).  Customer must request the Service Credit within fifteen (15) days following the end of the calendar month in which the Downtime occurred.  Upon a proper request for a Service Credit that meets the foregoing requirements, ProcessMaker will credit to Customer the applicable Service Credit against future fees, provided that in no event with the Service Credits accrued in a twelve-month period exceed thirty percent (30%) of total fees for that twelve (12) month period. THE SERVICE CREDITS SETS FORTH PROVIDER’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY UNAVAILABILITY OR DOWNTIME OF THE SAAS SERVICES.

Training & Documentation: Customer will have access to educational resources through the following channels:

ProcessMaker University Self-paced courses, on demand training and additional education materials are provided through Provider’s dedicated training site: https://university.processmaker.com/

Note: Access to ProcessMaker University may be limited to the number of permitted users specified in the Order.

Knowledge Center Thorough documentation on the SaaS Services functionality as well notes for each release are provided via Provider’s Knowledge Center:  https://docs.processmaker.com/

Status Page: The current status of shared cloud servers, along with notifications for upcoming maintenance periods are provided through the site https://status.processmaker.com/. Notifications of updates and changes are provided to subscribers of this status page.

Authorized Support Contacts: Designated Customer contacts who are authorized to submit support requests to Provider Support and to work directly with Provider personnel.