TERMS OF USE FOR FLOWABLE TRIAL VERSION
TERMS OF USE FOR FLOWABLE TRIAL VERSION
Revision September 2024
Please read carefully the following terms of use for trial version (“ToU”) before using our software product. The use of our software licensed by Flowable AG (“Licensor”) to you, the original end user, is for your use only as set forth below. If you do not agree with the ToU, do not use the software.
Using any part of the software indicates that you accept these ToU. By accepting, you will be bound by and become party to the ToU. The ToU shall apply to the unsupported free trial license of Licensor’s Software “Flowable” and certain software elements (as defined below), made available either as a software download or as online service, and, if applicable, third-party software products licensed or supplied by Licensor.
1. DEFINITIONS
For the purpose of the ToU the following terms shall have the following meaning:
“Affiliate” means, in respect of each Party, any corporation or entity directly or indirectly controlled by, or under common control with, or controlling, such Party. The terms “controlled”, “controlling” and “control” refers to ownership, directly or indirectly, of at least 50% (fifty percent) or more of the shares or voting rights or the ability to control the operations of such entity.
“Documentation” means all user manuals and technical specification documentation made available by Licensor, however, this excludes any manuals or books published by or together with a third party.
“Effective Date” means the date on which the Licensed Software is provided by Licensor for download or on which the Licensee completes the successful registration of a Flowable online account.
“Licensee” means a named user with login credentials for the Licensed Software. “Licensed Software” means Licensor’s software product(s) and/or related technology for which Licensee receives a license grant. A release note for a New Release shall automatically be deemed part of the Licensed Software, unless rejected by Licensee in accordance with the terms of the ToU.
“New Release” means an update, upgrade or new version of the Licensed Software.
“OSS” means any software which is subject to free and/or open-source software license terms, including the Apache License, BSD license, MIT License etc.
“Territory” means worldwide, provided, however, that Licensee ensures compliance with all applicable laws only, including, without limitation, applicable export controls laws.
“Third Party Technology/Software” means any software program, computer code, programming libraries, application programming interfaces or other materials, whose Intellectual Property Rights are not owned by Licensor or its Affiliates but provided to Licensee as part of the license.
“Trial Period” means a period of up to 30 (thirty) calendar days following the Effective Date. Further terms are defined throughout the ToU.
2. LICENSE GRANT
2.1 License: Subject to the provisions of the ToU, Licensor grants to Licensee a limited, non-exclusive, non-transferable, non-assignable, non-sub-licensable license pursuant to the provisions of these ToU to use the Licensed Software for non-production purposes (internal test integration and test evaluation) and for its own internal business operations only during the Trial Period in the Territory (“Trial License”). This includes the exclusive internal and non-commercial use of the Documentation for reference purposes only.
2.2 Licensee obligations: Licensee hereby undertakes to refrain, and to ensure that its Affiliates refrain, from making any copies or use, from any other exploitation, and from permitting any use, of the Licensed Software (including documentation), except as explicitly permitted under the ToU. Nothing herein has the effect of transferring, or granting any rights in respect of, any copyrights or other intellectual property rights in the Licensed Software. Licensor remains free to assign or transfer intellectual property rights in the Licensed Software provided the rights of Licensee are not affected thereof. The ToU shall be binding for Licensee and all its Affiliates. Licensee shall be liable for the acts and omissions of its Affiliates under this ToU.
2.3 Delivery: Upon receipt of the online license request, Licensor shall assess that Licensee qualifies for receiving a free Trial License under this ToU and inform Licensee (by e-mail, respectively other means) accordingly. For access to the Licensed Software as software download, Licensor or its Affiliates shall make available the Licensed Software to Licensee via a direct download link or other access, from where the Licensed Software can be downloaded. For access to the Licensed Software as online service, Licensor or its Affiliates shall grant access to Licensee to the Licensed Software following complete and successful registration by Licensee of a Flowable online account (“Account”).
By creating the Account, Licensee acknowledges that it is responsible for maintaining the security of the Account (including, but not limited to, login credentials and security keys) and for all activities that occur under the Account. Licensee will not misuse or share its login credentials and security keys, misrepresent Licensee's identity or affiliation with an entity or impersonate any person or entity. Licensee agrees to immediately notify Licensor of any unauthorized use of the Account, or any other breaches of security of which Licensee becomes aware. Licensor shall have no liability for any acts or omissions on Licensee's or any third party's part, including any damages of any kind incurred as a result of such acts or omissions.
Any notifications regarding the Licensed Software or Licensor's services, will be sent to the e-mail address registered with the Account. Licensor is under no obligation to provide a free Trial License and to enter into the ToU with any party and Licensor may reject Licensee’s request with or without stating the reasons for such rejection. In no event is a Licensee entitled to obtain a free Trial License more than once. Licensor will provide access to the Licensed Software in its sole discretion and without prejudice for future use of any kind; Licensor may withdraw its consent to provide Licensee with access at any time.
2.4 No support and maintenance: Licensor does not provide any support, maintenance or other services under the Agreement. Any maintenance, technical or other services to be provided by Licensor or an Affiliate of Licensor in support of the use of the Licensed Software during the Trial Period shall be subject to a separate agreement.
2.5 Ownership and Intellectual Property: The Licensed Software, all related Documentation and any Update(s) in form of Releases are not in the public domain. Ownership of all Licensed Software intellectual property rights, including the rights in source code and all related Documentation, patents, copyrights, trademarks, service marks, internet domain names, trade secrets, database rights, design rights, knowhow, techniques, processes, methods, specifications and all other rights of authorship and intellectual and industrial property rights, and other equivalent or similar rights which may subsist anywhere in the world, whether registered or not, including any form of application for any of the foregoing shall remain exclusively with Licensor and its Affiliates, its licensors and suppliers (if applicable).
Licensee hereby undertakes to refrain from making any copies or use, from any other exploitation, and from permitting any use, of the Licensed Software (including Documentation), except as explicitly permitted under the ToU. Nothing herein has the effect of transferring, or granting any rights in respect of, any copyrights or other intellectual property rights in the Licensed Software except that Licensee shall be granted the contractual right to make use of the Licensed Software in accordance with the License.
2.6 Restrictions: Licensee must not use the Licensed Software for unlawful or fraudulent content or activity, or violating third party rights. If there is a complaint or notice of violation, use may be suspended until resolved, and terminated if not resolved promptly. Licensee shall hold Licensor and all its Affiliates, directors and employees harmless from and against any claims that may arise out of Licensee’s violation of the applicable laws and regulations.
2.7 Dependencies: Whenever the Licensed Software is made available as a software download it is provided with certain Third-Party Technology/Software and, therefore, subject to (i) system and equipment requirements and (ii) licenses from third parties, including OSS licenses (“Third Party Licenses”, together with system and equipment requirements “Dependencies”). The applicable license provisions and/or copyright notices are in the license file, Documentation, or other materials accompanying the Licensed Software or available on Licensor’s website. Licensee represents and warrants that, its use of the Licensed Software will comply with such Third Party Licenses and Dependencies, in particular when incorporating them into its product(s) and/or when using and exploiting the Licensed Software.
3. LICENSE TERM, TERMINATION
3.1 Term and termination of the ToU: By respecting Licensor’s right to withdraw its consent according to Section 2.3 above at any time, the ToU shall become effective as of the Effective Date and continue to be in effect until expiration of the Trial Period. It can be terminated before according to Section 3.2. Upon expiry of the Trial Period, the ToU shall end automatically. Licensor may extend the Trial Period of the Trial License at its sole discretion subject to a separate agreement by and between the parties.
3.2 Termination for cause: Either Party may terminate the ToU by giving notice in writing to the other Party if the non-terminating Party commits a material breach of the ToU and has failed to cure such breach within ten (10) days following a request from the notifying Party to do so. For the avoidance of doubt, breach of the terms of the License or of a Third-Party License shall be considered a material breach under the ToU.
3.3 Effect of termination: Upon expiration of the Trial Period the Trial License expires immediately and Licensee’s entitlement to use the Licensed Software ends automatically.
4. FEES
License Fees: The license grant is free of cost.
5. REPRESENTATIONS AND WARRANTIES
5.1 General: Given that the Trial License is free of cost for Licensee, Licensor provides no representations or warranties, whether express, implied, statutory or otherwise regarding or relating to the Licensed Software and, to the maximum extent permitted under applicable law, Licensor hereby disclaims any and all representations and warranties and in particular any representation or warranty of merchantability, fitness for a particular purpose.
5.2 Disclaimer: In the event of a breach of a representation or warranty which cannot be validly excluded due to mandatory applicable law, Licensor's sole obligation, and Licensee's exclusive remedy, shall be limited to the extent permitted by applicable law to Licensor or, at Licensor's choice, an Affiliate of Licensor, repairing the defect or replacing the defective Licensed Software.
6. LIABILITY
6.1 NO CONSEQUENTIAL DAMAGES: NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST OR CORRUPTED DATA OR CONTENT, LOST REVENUE ARISING OUT OF THE ToU (INCLUDING WITHOUT LIMITATION THE USE OF THE LICENSED SOFTWARE OR THE INABILITY TO USE LICENSED SOFTWARE), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 LICENSOR'S TOTAL AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THESE ToU OVER THE TRIAL PERIOD OF THESE ToU SHALL BE LIMITED TO CHF 1.00 (ONE SWISS FRANC), REGARDLESS OF THE BASIS OF THE CLAIM.
6.3 LICENSOR'S LIABILITY FOR SUBPROCESSORS ACCORDING TO ART. 101 SWISS CODE OF OBLIGATIONS SHALL BE EXCLUDED. THESE LIMITATIONS APPLY COLLECTIVELY TO LICENSOR, ITS AFFILIATES, CONTRACTORS, SUBPROCESSORS, AND SUPPLIERS.
6.4 EXCLUSIONS: THE LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS 6.1 AND 6.2 SHALL NOT APPLY WITH RESPECT TO (I) DAMAGES TO PERSONS AND/OR TANGIBLE PROPERTY OCCASIONED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY; (II) BREACHES BY LICENSEE OF LICENSE TERMS APPLICABLE TO LICENSOR PROVIDED SOFTWARE AND THIRD-PARTY PRODUCTS AS SET FORTH IN SECTION 2.7; (III) LICENSEE'S UNAUTHORIZED USE OF LICENSOR'S OR THIRD-PARTY PROVIDERS'S INTELLECTUAL PROPERTY, MATERIALS OR ASSETS; (IV) DAMAGES INCURRED AS A RESULT OF A BREACH BY A PARTY OF ITS OBLIGATIONS UNDER SECTION 7 THAT RESULT IN THE DISCLOSURE OF CONFIDENTIAL INFORMATION OF THE OTHER PARTY. DAMAGES AS LIMITED BY THIS SECTION ARE LICENSEE'S SOLE AND EXCLUSIVE REMEDY IF ANOTHER REMEDY IS PROVIDED AND SUCH REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
7. CONFIDENTIALITY AND DATA PROTECTION
7.1 Confidential Information: The parties acknowledge that they may, in the course of performing the ToU, obtain information relating to the other Party, which is of a confidential or proprietary nature (“Confidential Information”). Confidential Information includes information, data and materials concerning Licensor’s or Licensee’s business, products, projects, strategies, employees, customers, designs, pricing, research, development activities as well as computer programs, drawings, algorithms, know-how, formulas, processes, ideas, inventions and other information which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, written, graphic or photographic or other form. The Licensed Software, and in particular, without limitation, the source code, are Confidential Information of Licensor.
7.2 Non-disclosure: The parties shall not disclose Confidential Information of the other Party to any third party and shall protect such information at all times against unauthorized disclosure or access. The parties shall refrain from using Confidential Information of the other Party for any purposes other than as necessary to carry out their duties under the ToU. Each Party may, however, disclose any Confidential Information to third parties to the extent necessary to exercise and enforce its rights under the ToU or as required by law or regulations. Licensor shall be entitled to share Confidential Information of Licensee with its Affiliates, provided, however, that Licensor remains responsible for its Affiliates' compliance with this confidentiality clause.
7.3 Exceptions: The obligations of confidentiality shall not apply to information which (i) is in the public domain, except where such information being in the public domain is the result of the receiving Party’s breach of the ToU, (ii) was already in the receiving Party’s possession prior to disclosure hereunder, (iii) is obtained by the receiving Party on a non-confidential basis from a third party that has the right to disclose such information, or (iv) was developed by the receiving Party without any use of any of the Confidential Information, as can be proven by the receiving Party.
7.4 Data Protection: Each Party undertakes to process information on identifiable natural persons and legal entities (“Personal Data”) received from, or on behalf of, the other Party in accordance with applicable data protection laws, in particular the Swiss Federal Act on Data Protection (FADP), and, if applicable, the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679) and any related legislation, regulations, requirements or guidance from time to time. In particular, the Parties will implement adequate technical and organizational measures (pursuant to applicable law, respectively the arts. 15 et seqq. and 32 et seq. GDPR). Unless otherwise agreed to in writing, and except for limited information required when setting up user or administrator accounts (e.g., name, e-mail address), neither Party shall or is required to provide any other Personal Data of their employees or customers that will be processed on behalf of the other Party which is or may be subject to regulation under national or international privacy rules and regulations.
7.5 Telemetry Data: For the purpose of this section, Telemetry Data means all information and data of Licensee collected in connection with Licensee's access and use of the Licensed Software, including but not limited to information about browsers, implemented clients, and related pages accessed by users, API calls and the Version of the Licensed Software. It may contain Personal Data such as hashed IP addresses, email addresses and identifiers, including cookies, but is generally technical, aggregated or pseudonymized. Licensee acknowledges that certain features used in connection with the Licensed Software are configured to collect and report Telemetry Data to Licensor to improve the user experience, to track usage of the Licensed Software, to ensure the security, stability and functionality of the Licensed Software and provide support to Licensee, such as guidance that will help optimize usage. Licensor will use Telemetry Data subject to applicable law and Licensor's Privacy Policy, which is available at https://www.flowable.com/privacy-policy. Licensee hereby consents and grants Licensor a worldwide right to collect, host, copy, use, execute, transmit and display Telemetry Data, Licensee applications and any third party products, as necessary to provide and improve the access to and use of the Licensed Software by the Licensee. Licensor will not acquire any right, title or interest from Licensee in or to any information processed or transmitted by or on behalf of Licensee in the Licensed Software during the Trial Period or to third party products.
7.6 Survival: This clause survives the expiry or termination of the ToU for an additional period of five years.
8. MISCELLANEOUS
8.1 Assignment: Licensee cannot assign any of its rights or obligations under the ToU, whether by operation of law or otherwise, without prior written consent of the Licensor. Subject to the foregoing, the ToU is binding upon, inures to the benefit of and is enforceable by, the parties and their respective permitted successors and assigns.
8.2 Severability: The invalidity or unenforceability of individual parts of the ToU shall have no impact on the validity of the ToU as a whole. The Parties agree that if any provision or part of a provision of the ToU shall under any circumstances be invalid, inoperative or otherwise not enforceable, the ToU as a whole shall remain valid and the invalid, inoperative or unenforceable provision or part of a provision shall be deemed replaced by a provision which corresponds to the widest extent possible to the invalid or inoperative, unenforceable provision or part of a provision without being invalid or inoperative itself.
8.3 Governing Law: The ToU shall be governed by and construed in accordance with the laws of Switzerland, excluding its conflict of laws rules and excluding the UN Convention for the International Sale of Goods. In the event of any dispute arising out of or in connection with the ToU, such dispute shall be referred exclusively to the jurisdiction of the competent courts of Zurich, Switzerland.