ProcessMapper Terms and Conditions of Use

1. Legal Agreement

Thank you for registering to be a user of the ProcessMapper on-demand business process modeling and management service. These Terms of Use apply to you, a user of the Service, and constitute a binding, legal agreement (“Agreement”) between you, as an individual, or if you are purchasing or using the service as part of your job responsibilities, the legal entity that you represent, and Colosa, Inc, the company that owns and operates the ProcessMapper intellectual property, trademarks, service, and software. (“Colosa”).

Please read all the terms and conditions of this Agreement carefully. By registering for and/or using the Service, you agree that you are bound by the terms and conditions of this Agreement, and you represent and warrant that you have full power, authority and legal capacity to enter into this Agreement. Please contact COLOSA at info@colosa.com if you have any questions about this Agreement.

2. Definitions

“Downloaded Software” means client software downloaded by an Authorized User (defined below) from the Site that augments your use of the Service, including add-ins and ancillary programs.

“Order Form” means a signed paper or web-based order form completed by you when ordering the Service.

“Service” means the provision by COLOSA to you of hosted business process modeling and related services, in accordance with the tiers of service and other options as set forth in the Order Form. The Service includes the provision on a hosted basis of non-exclusive use and access to proprietary COLOSA software, and associated hosting and support services as described herein.

“Site” means the web site at www.ProcessMapper.com and/or such other web site or sites that COLOSA communicates to you where you may access the Service.

“Software” means COLOSA’s proprietary software used by COLOSA to deliver the Service, made available to you through the Site on a “Software as a Service” basis, and all updates and associated documentation thereto made available as a part of the Service pursuant to this Agreement. The term “Software” includes the Downloaded Software.

“Trial Use or Beta Use” means your use of the Service during a free period (either a trial period up to 30 days or an extended Beta period), as further described on the Site.

3. Service.

3.1 Under the terms of and subject to the restrictions in this Agreement, including payment of all applicable fees, COLOSA will provide the Service on a subscription basis to you during the term of this Agreement. You may use and access the Service and Software solely through the Site. Your rights to use the Service are non-exclusive and non-transferable. You may use the Service only for your own benefit, and not for the benefit of any other third party.

3.2 As part of the Service, COLOSA will provide reasonable technical support to you via e-mail and an online support portal during COLOSA’s regular business hours. As applicable, additional terms and limitations regarding support for the Service based on the selected Service tier will be included on the Site.

3.3 COLOSA will use commercially reasonable efforts to make the Service available on a 24 hours a day, 7 days a week, and 365 days a year basis, subject to Section 13.2 (Force Majeure) below and to downtime for maintenance purposes. COLOSA will, to the extent practicable, schedule maintenance downtime outside of regular business hours, as further defined and stated on the Site.

3.4 COLOSA may from time to time modify the Site and the Service and add, change, or delete features of the Service in its sole discretion, without notice to you. Your continued use of the Service after any such changes to the Service constitutes your acceptance of these changes. COLOSA will use commercially reasonable efforts to post information on the Site regarding material changes to the Service.

3.5 The Service may be used and accessed for your internal business purposes and only by your employees, independent contractors, business partners and customers enabled by you to use the Service (“Authorized Users”). Third parties authorized by you may use the Service only for the purpose of facilitating business transactions with you or for providing services to you, and in no event may third parties use and access the Service provided to you as a business process modeling solution for their own or for another person’s benefit. You agree not to charge any Authorized Users to use the Service, either directly or indirectly. You shall be fully responsible for use of the Service by Authorized Users and their compliance with the terms of this Agreement.

3.6 You acknowledge that you are solely responsible for: (a) all use of the Service made using your Authorized Users’ user names and passwords, and (b) maintaining the confidentiality of your Authorized Users’ user names and passwords. Only one individual may access the Service at the same time using the same user name and password. You agree to notify COLOSA immediately of any unauthorized use of an Authorized User’s email address, user name or password, or any other breach of security regarding the Service of which you become aware.

3.7 If you have acquired Trial Use of the Service or Beta use of the software, the following terms shall apply in connection with your Trial Use, notwithstanding anything to the contrary herein:

3.7.1 the Beta Use orTrial Use is provided “AS-IS”, without warranty of any kind, express or implied;

3.7.2 Unless you have notified COLOSA that you wish to convert the trial to a full subscription prior to the end of the Trial Use period, your account will automatically terminate at the end of the Trial Use period; and

3.7.3 Upon termination of your Trial Use or Beta Use Period, unless you have previously converted to a full subscription, all Client Documents stored by you as part of the Service will be permanently deleted without notice to you, and you will have no right to access the Service or any of your Client Documents after termination.

3.8 You warrant and agree not to:

• Violate any local, state, national or international law or regulation in connection with use of the Service, or otherwise use the Service in any way that is in furtherance of criminal, fraudulent, or other unlawful activity
• Interfere with or disrupt the Service or servers or networks connected to the Service
• Violate any codes of conduct, requirements, terms of use, policies or regulations of networks connected to the Service
• Interfere with or attempt to interfere with any other person’s use of the Service
• Gain access to or attempt to gain access to any account, computers or networks related to the Service without authorization
• Use the Service to send or otherwise make available any viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another’s computer or property
• Use the Service in a manner that results in excessive bandwidth usage, as determined in COLOSA’s sole discretion
• Impersonate any other person or entity, or misrepresent your affiliation with any other person or entity
• Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or communication transmitted through the Service

4. Intellectual Property

4.1 You agree that COLOSA and its licensors own all intellectual property rights in and to the Service, the Software, and the Site, including but not limited to the look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays associated therewith. You will not reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. You further agree not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party for such third party’s benefit. You may make a single copy of the Downloaded Software for backup purposes only; provided that any such copies contain the same proprietary rights notices that appear on the Downloaded Software. COLOSA reserves all rights in the Service not expressly granted to you hereunder.

4.2 You shall retain ownership of the process maps and related materials and information you upload or create in connection with the Service (“Client Documents”). COLOSA shall not access or otherwise use the contents of any Client Documents, unless you give specific permission to such access in connection with COLOSA’s handling of a support issue or because you opt to publicly share your information via one of the social network services used on the site. Solely in order to provide the Service to you, COLOSA may copy, archive, index, and create metadata relating to the Client Documents. COLOSA may derive and compile from your usage of the Service certain aggregated and/or analytical information, so long as such aggregated or analytical information does not reveal any information about you, any individual, or the contents of any Client Documents. Such aggregated data and metadata may be used for COLOSA’s own purposes without restriction, including, but not limited to, using such data in conjunction with data from other sources to improve COLOSA’s products and services and create new products.

4.3 COLOSA shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, or other information provided by you or any Authorized User relating to the Service.

4.4 COLOSA’s trademarks include ProcessMapper, ProcessMapper Live, Pmapper, Pmapper Live, and the ProcessMapper logo. Any other company or product names used on the Site or in connection with the Service are the property of the respective trademark owner.

5. Fees and Expenses

5.1 You shall pay COLOSA all applicable fees associated with the Service as set forth in the Site and/or Order Form, and in accordance with the terms set forth therein. All payments under this Agreement are non-refundable and, unless otherwise agreed, shall be made in United States dollars. Past-due payments will be subject to late payment charges of the lesser of: (a) one and one-half percent (1 ½ %) per month, or (b) the maximum rate allowed by law. The fees and rates under this Agreement are subject to change by COLOSA upon at least thirty (30) days written notice, which notice may include by posting the updated fees and rates on the Site.

5.2 You shall be responsible for all applicable taxes, however designated, incurred in connection with this Agreement, including but not limited to state and local privilege, excise, sales, VAT, and use taxes and any taxes or amounts in lieu thereof paid or payable by COLOSA, but excluding taxes based upon the net income of COLOSA.

5.3 If a payment becomes ten (10) business days or more overdue, COLOSA reserves the right to suspend your access to the Service without liability to you, until payment is made in full. If any payment becomes thirty (30) days or more overdue, COLOSA may terminate this Agreement upon notice to you. COLOSA has the right to change payment terms, including by requiring upfront payment for the Service, in its discretion based on your payment history and/or financial status.

6. Confidentiality and Security

6.1 “Confidential Information” means any information or data that is disclosed by one party to the other party pursuant to this Agreement that is marked as confidential. In addition, your Confidential Information includes the Client Documents (whether or not marked), and Confidential Information of COLOSA (whether or not marked) includes the Service and Software, as well as the structure, organization, design, algorithms, templates, data models, logic flow, and screen displays associated with the Service and Software. Confidential Information does not include information that the receiving party can show: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; (c) was willingly shared via a social network service such as Twitter, Facebook, or Google +, or (d) was previously known by the receiving party as shown by its written records.

6.2 A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence, and to protect the disclosing party’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party’s Confidential Information. Without limiting the foregoing, you shall disclose and allow access to the Service only for the purpose of supporting and augmenting your use of the Service. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law, applicable regulatory authorities, or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.

6.3 Each party acknowledges and agrees that any violation of this Section 6 may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that disclosing party shall have at law or in equity.

6.4 COLOSA will take reasonable security measures designed to protect your Confidential Information, including your Client Documents. These measures will include the use of reasonable physical, administrative, and technical security techniques and systems designed to prevent unauthorized access and disclosure, maintain data accuracy, and ensure appropriate use of your Confidential Information.

6.5 You agree to the terms of COLOSA’s privacy statement, which is located at http://www.ProcessMapper.com/privacy and is incorporated herein by reference (including any changes to COLOSA’s privacy statement made in accordance with its terms).

6.6 Upon termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all Confidential Information delivered or disclosed to the receiving party (including, with respect to you as receiving party, the Downloaded Software), together with all copies in existence thereof at any time made by the receiving party; provided that return of Client Documents by COLOSA to you is covered by Section 7.6 below.

7. Term and Termination

7.1 This Agreement will be effective as of the Effective Date and, unless sooner terminated as herein provided, will continue for the period of time set forth in the Order Form (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive renewal terms (each renewal term being the same length as the Initial Term) based on COLOSA’s then-current fees, unless either party provides written notice of its intent to terminate this Agreement at least fifteen (15) days prior to the end of the Initial Term or applicable renewal term.

7.2 Either party may terminate this Agreement upon thirty (30) days prior written notice if the other party materially breaches any of the terms and conditions of this Agreement and such material breach is not cured within the thirty (30) day period. COLOSA will have the right to suspend your use of or access to the Service in the event COLOSA determines in its sole discretion that you have breached this Agreement. Notwithstanding the foregoing, termination and suspensions relating to late payments by you are covered in Section 7.3 below.

7.3 If a payment becomes ten (10) business days or more overdue, COLOSA reserves the right to suspend your access to the Service without liability to you, until payment is made in full. If any payment becomes thirty (30) days or more overdue, COLOSA may terminate this Agreement upon notice to you.

7.4 COLOSA may terminate this Agreement without cause upon at least sixty (60) days prior written notice. In such event, you will be entitled to a refund of any prepaid amounts for Service not delivered.

7.5 The terms provided in Sections 4, 6, 9, 10, 11, 12, 13, and 14 of this Agreement shall survive any termination of this Agreement. In addition, upon termination you shall promptly pay COLOSA all outstanding amounts due to COLOSA under this Agreement. If this Agreement is terminated by COLOSA due to your breach, which you fail to cure after receipt of written notice, or if you terminate this Agreement without cause prior to the end of the then-current term, then all fees unpaid for the remainder of the current term shall become immediately due and payable by you to COLOSA as liquidated damages, without any further demand by COLOSA. The parties acknowledge that COLOSA’s actual damages arising from such termination would be difficult to determine with accuracy and, accordingly, have agreed to the foregoing liquidated damages, which the parties acknowledge is a reasonable estimate of COLOSA’s potential losses.

7.6 Within thirty (30) days after termination, you may request in writing that COLOSA provide you with access to a copy of all Client Documents, and COLOSA will provide such Client Documents so long as you pay the then-current fee for such service.

8. Independent Contractors; Publicity

8.1 The parties are and intend to be independent contractors with respect to the services contemplated hereunder. COLOSA agrees that neither it, its employees nor its contractors shall be considered as having an employee status with you. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created.

8.2 You agree that COLOSA may include you as a customer in promotional material for the Software and/or for COLOSA, including use of your logos, trademarks, trade names and similar identifying material. You can revoke this right by submitting a request via e-mail to COLOSA at marketing@colosa.com. Confirmation of such request (via reply e-mail) must be received for this to be effective. Upon receipt of such request, COLOSA will use commercially reasonable efforts to remove any reference to you from such promotional material within 30 days and make no further reference to you. Upon COLOSA’s request, you agree to participate in a mutually agreed press release regarding the relationship established by this Agreement. In addition, you agree from time to time, as reasonably requested by COLOSA and subject to your approval, to participate in COLOSA promotional activities, such as preparation of case studies; participation in media interviews; and preparation of quotes and other marketing materials for COLOSA. Approvals under this Section shall not be unreasonably withheld or delayed by you.

9. Warranties; Disclaimers

9.1 You and COLOSA each warrant that they have full authority to enter into this Agreement and are not bound by any contractual or legal restrictions from fulfilling their obligations hereunder. In addition, COLOSA warrants that the Service will substantially conform to the written or electronic documentation provided by COLOSA in connection with the Service. In the event of a breach of this warranty by COLOSA, as your sole and exclusive remedy, COLOSA will, at its expense, use commercially reasonable efforts to cause the Service to conform.

9.2 You represent and warrant that all Client Documents and associated content and data (“Client Data”) provided to COLOSA in connection with your use of the Site and the Service: (i) is owned by you, or you have the full right to provide the Client Data to COLOSA; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. You further represent and warrant that your use of Client Data on the Site or in connection with the Service is not in breach of any covenant or obligation of confidentiality that you have to any other person or entity. You are solely responsible for the Client Data, and acknowledge that COLOSA has no responsibility or intent to review or monitor any Client Data.

9.3 You shall be solely responsible for your use of the Service, and, except as otherwise agreed in writing by the parties, for maintaining backup copies of the Client Documents. You acknowledge and agree that the Service is strictly a tool to be used in conjunction with good and reasonable business judgment by competent personnel.

9.4 The Service may contain features, functionality and information that are provided through or by third-party content, software, web sites, and/or systems (“Third-Party Materials”). Your use and access of these features and functionality are subject to the terms published or otherwise made available by the third-party providers of Third-Party Materials. COLOSA has no responsibility for any Third-Party Materials, and you irrevocably waive any claim against COLOSA with respect to such Third-Party Materials.

9.5 COLOSA does not warrant that the Service will operate without interruption or error-free, or that the Service will be totally secure. Under no circumstances will COLOSA be held liable for any loss of Client Documents. To the extent that data is being transmitted over the Internet hereunder, you acknowledge that COLOSA has no control over the functioning of the Internet, and COLOSA makes no representations or warranties of any kind regarding the performance of the Internet. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COLOSA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.

10. Indemnification

You, at your expense, shall indemnify, defend and hold COLOSA and its officers, directors, owners, employees, and affiliates harmless from and against all liability, damages, injuries, losses, costs and expenses (including attorney’s fees) arising out of or relating to your use of the Service, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to: (a) your breach of any representations, warranties, or covenants in this Agreement, (b) your compliance with applicable laws and regulations, and (c) the Client Documents. COLOSA shall provide you with prompt written notice of any such claim.

11. Liability

11.1 The limit of COLOSA’s liability (whether in contract, tort, negligence, strict liability in tort, or by statute or otherwise) to you or to any third party concerning performance or non performance by COLOSA, or in any manner related to this Agreement or the Service, for any and all claims shall not exceed in the aggregate the Subscription Fees paid by you to COLOSA hereunder with respect to the Service at issue (excluding any fees or charges relating to approved expenses incurred by COLOSA on behalf of you) during the six (6) months prior to the date that the relevant cause of action accrued.

11.2 In no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence.

11.3 The allocations of liability in this Section represent the agreed and bargained for understanding of the parties and COLOSA’s compensation reflects such allocation. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.

12. Dispute Resolution

12.1 The parties agree to work together in good faith to resolve any dispute regarding this Agreement internally and by escalating it to higher levels of management and optional mediation, prior to resorting to binding arbitration.

12.2 Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Miami, FL (USA), under the commercial arbitration rules of the American Arbitration Association (“AAA”). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction or similar equitable relief.

12.3 This Agreement shall be interpreted, construed, and governed by the laws of the State of Florida, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

13. Miscellaneous

13.1 If you are located in the European Union, you consent to the processing of personal information in the United States by COLOSA in connection with the Service.

13.2 Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.

13.3 This Agreement (including the Order Form and any attachments thereto specifically agreed by the parties) constitutes the entire understanding of the parties with respect to its subject matter, and supersedes all prior or contemporaneous written and oral communications, understandings or agreements with respect to its subject matter. No waiver of any provision of this Agreement, or of any rights or obligations of any party hereunder, will be effective unless in writing and signed by the party waiving compliance. The failure by any party to exercise any right provided herein shall not be deemed a waiver or forfeiture of any such right. Headings used in this Agreement are for convenience of reference only and shall not be deemed a part of this Agreement.

13.4 You shall have no right to assign this Agreement or any of your obligations hereunder. COLOSA may assign this Agreement and any of its rights hereunder to third parties.

13.5 Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect.

13.6 This Agreement does not designate either party as the agent, employee, legal representative, partner or joint venturer of the other party for any purpose whatsoever. There are no intended third-party beneficiaries under this Agreement.

13.7 You agree to comply with all relevant export laws and regulations, including, but not limited to, the U.S. Export Administration Regulations and Executive Orders ("Export Controls"). You warrant that you are not a person, company or destination restricted or prohibited by Export Controls ("Restricted Person"). You will not, directly or indirectly, export, re-export, divert, or transfer the Software or Service, any portion thereof or any materials, items or technology relating to COLOSA's business or related technical data or any direct product thereof to any Restricted Person.

14. Agreement and Amendments

14.1 By completing the registration process, and/or using the Service, you represent that you are 18 years old or older, are authorized to bind any legal entity that you represent, and agree to all of the terms in this Agreement. You may print and keep a copy of this Agreement.

14.2 COLOSA reserves the right, in its sole discretion, to modify or change this Agreement at any time by posting the changes to the Site. Your continued use of the Site or Service following the posting of such changes constitutes acceptance of those changes. COLOSA will use reasonable commercial efforts to provide notice of material changes to you. COLOSA also reserves the right to modify the Site and the Service at any time without prior notice to you.

14.3 COLOSA will periodically send emails regarding the ProcessMapper service, including general information about the technology and business. You can easily unsubscribe from email communications using our simple unsubscribe process.