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Terms of Service for the ABBYY FlexiCapture Cloud Service

ABBYY will provide You with the Service subject to these Terms of Service for the ABBYY FlexiCapture Cloud Service (this “Agreement”).

CAREFULLY READ THIS AGREEMENT BEFORE ACCEPTING IT. BY CLICKING THE BOX INDICATING YOUR ACCEPTANCE OF THE AGREEMENT, BY EXECUTING A SIGNUP FORM THAT REFERENCES THIS AGREEMENT OR BY USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT CLICK ON THE ACCEPT BOX AND DO NOT USE THE SERVICE.

1. Definitions

1.1. “ABBYY” means ABBYY Europe GmbH, a California corporation having its principle place of business at Landsberger Str. 300, 80687 Munich, Germany.

1.2. “Account” means a collection of data associated with a particular Authorized User of the Service. Each Account comprises a username and password, and defines various settings for use of the Service. An Account is a sub-entity of a Tenant.

1.3. “Administration & Monitoring Station” is a web component allowing You to manage the settings and see statistics for Your Tenant.

1.4. “Affiliate” means any corporation, company or other legal entity that is under the Control of, under common Control with or Controls one of the parties to this Agreement, but constitutes an Affiliate only so long as such Control exists. “Control” and its variants “Controlled by” or “under common Control with” means having more than fifty percent (50%) of the power, directly or indirectly, to vote the outstanding voting securities or partnership interests of the entity, to elect the directors, or otherwise to direct or cause the direction of the entity’s management and policies, whether by voting power, contract, or otherwise.

1.5. **”Authorized Users”**means individuals who are authorized by You to use the Service, and who have been supplied an Account username and password by You (or by ABBYY or by a Partner at Your request). Authorized Users may include Your employees, consultants, contractors, agents, and/or a Partner.

1.6. “Data Protection Laws” means all applicable local, state, national, and foreign data protection, data privacy, electronic communications and data security laws, treaties, or regulations.

1.7. “End User” means a person or legal entity using Your Application/Your Service in accordance with the End User Agreement

1.8. “End User Agreement” means a written agreement between You and an End User that governs the rights and obligations of End User’s use of the Your Application/Your Service.

1.9 “Intellectual Property Rights” means all rights of any nature in patents, registered designs, registered trademarks and service marks, and all extensions and renewals thereof, unregistered trademarks and service marks, business and company names, unregistered designs, internet domain names and email addresses, design rights, topography rights, rights in inventions, utility models, database rights, know-how and copyrights (including moral rights); applications for any of the foregoing and the right to apply for any of the foregoing in any country; rights under licenses, consents, orders, statutes or otherwise in relation to the foregoing; rights of the same or similar effect or nature which now subsist; and the right to sue for past and future infringements of any of the foregoing rights.

1.10. “Partner” means an entity or individual who is authorized by ABBYY to market, promote or re-sell the Service on behalf of ABBYY.

1.11. “Project” means a specific set of files that contain settings for importing, processing, and exporting documents that may be uploaded to the Service.

1.12. “Service” means “ABBYY FlexiCapture Cloud” Web-service accessible via https://api-eu.flexicapture.com and all of ABBYY’s proprietary technology (including software, hardware, services, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to You by ABBYY as part of the Service, as well as ancillary online or offline services, audio, visual and text information.

1.13. “Service Fees” means the fees (as specified in each invoice or otherwise) payable by You to ABBYY for use of the Service.

1.14. “Service Marketing Materials” means picture samples, demo samples, user’s guides, notification texts and other marketing materials made available to You through e.

1.15. “Service Storage” means the software and hardware used by ABBYY to store Uploaded Data.

1.16. “Tenant” means a group of Authorized Users sharing the common sub-system dedicated to You with its specific documents, data, Projects, and processing rules. The Service is a multitenant environment.

1.17. “You” or “Your” means any person and/or any entity that has accepted this Agreement and/or uses the Service.

1.18. “Your Data” means any data, information, or material (including but not limited to any images, scanned documents or photos) provided or submitted by You or Authorized Users, or automatically collected about Authorized Users. Your Data does not include Uploaded Data.

1.19. “Your Application/Your Service” means an application or service incorporating or using the Service, operated by You or Your behalf, that is capable of sharing an Account with the Service, generally through an application program interface (API).

1.20. “Your Functionality” means the set of capabilities that You make available through Your Application/Your Service for End Users utilizing the Service.

1.21. “Uploaded Data” means any data, information, or material uploaded by You, End Users or Authorized Users to the Service Storage in the course of using the Service.

2. Service

2.1. Scope. In consideration of the Service Fees paid and subject to the terms and conditions of this Agreement, ABBYY grants to You a limited, non-exclusive, revocable, non-transferable, right to access and use the Service during the term of this Agreement. All rights granted hereunder by ABBYY are revocable in accordance with this Agreement. All rights not expressly and unambiguously granted herein are reserved by ABBYY.

2.2. Feature Modification. ABBYY FlexiCapture Cloud is an evolving service. ABBYY may add additional features to the Service, remove features, or modify the design of existing features. Any such addition, removal or modification may be done: (i) without notice if it does not disrupt computer-to-computer integration that is based upon reasonable integration techniques supported by ABBYY, between Your Application/Your Service and the Service, or (ii) with 90-days’ notice to Your Account e-mail address if it disrupts such computer-to-computer integration. Notwithstanding the above, features designated as “Beta”, “Preview”, “Experimental”, “Labs” or with other similar designations (“Experimental Features”) may be changed or removed at any time without notice, even if such action disrupts computer-to-computer integration. ABBYY is under no obligation to make any new features or feature modifications available as part of the Service.

2.3. Technical Integration. You are solely responsible for technical integration of the Service, the feasibility of integration of the Service, and all costs associated with technical integration of the Service. Under no circumstances shall ABBYY be liable for any failure to achieve satisfactory or timely technical integration, even if the failure is caused by a software issue, documentation issue or insufficient support by ABBYY.

2.4. Limits. In order to ensure the efficient and stable operation of the Service, ABBYY may impose reasonable limits on Your use of the Service including but not limited to maximum Document size, peak Document rates, and connection timeouts.

2.5. Resources. Except as specified in the Agreement, ABBYY will determine in its sole and reasonable discretion the appropriate ABBYY resources to be used in providing the Service, on an as-available basis. ABBYY sometimes utilizes the services or products of third parties, whether companies or individual subcontractors as well as ABBYY Affiliates (“Approved Contractors”) which have been determined by ABBYY to meet its standards. In order to most effectively meet Your needs, ABBYY may assign or subcontract all or part of ABBYY’s performance obligations and rights towards the provision of any portion of the Service under this Agreement to an Approved Contractor.

2.6. No right to sublicense. ABBYY does not grant You the right to sublicense the Service without ABBYY’s prior written consent.

2.7. Service Users. ABBYY will make the Service available to You and Your Authorized Users for access and use by Authorized Users solely for Your, and End Users’, internal business purposes, except as otherwise provided in a separate written agreement with ABBYY. You are responsible for use of the Service by Authorized Users and any party who accesses the Service with Your or such Authorized User’s Account credentials. You shall solely be responsible for access and use policy with regard to Your use of the Service in accordance with the applicable laws.

2.8. No title. You acknowledge and agree that nothing herein transfers or conveys to You any right, title, or interest to any Intellectual Property Rights in or to the Service and any part thereof or copy thereof. No title to any Intellectual Property Rights is transferred to You unless otherwise provided for in Section 2. You shall further at no time dispute the validity of ABBYY’s right, title, or interest to any Intellectual Property Rights in or to Service and any part thereof or copy thereof or assert the right to use the intellectual property rights in the Service in any jurisdiction otherwise than as permitted by this Agreement.

3. General Obligations

3.1. General Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly required by applicable law, You will not, and will not permit or authorize third parties, directly or indirectly, to:

• a. circumvent or disable any technical features or measures in the Service;
• b. initiate a denial-of-service attack (DoS) or distributed denial-of-service (DDoS) attack;
• c. use the Service for CAPTCHA breaking;
• d. use the Service in any way not described in the online documentation.
• e. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Service or any software, documentation or data related to or provided with the Service unless the rights to perform such acts are expressly required under the applicable laws;
• f. misuse the Service by knowingly introducing viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful; or

3.2. Code Samples Restrictions. Except as otherwise explicitly provided in this Agreement:

• a. Code Samples are the property of ABBYY and shall at all times remain ABBYY’s property.
• b. You may include the Code Samples in Your Application/Your Service.
• c. You may study, modify and provide the Code Samples to End Users in binary code form as part of Your Application/Your Service or provide in-house access to the Code Samples, provided that Your Application/Your Service uses the Code Samples solely for processing the results obtained with the Service.
• d. Ownership of modifications to the Code Samples shall remain with the party making such modifications.
• e. If You disclose modifications made to the Code Samples by sending them to ABBYY technical support or by any other means, ABBYY shall be deemed to have been granted an irrevocable, non-exclusive, perpetual, transferable, royalty-free license to make, use, sell, offer to sell, import, license, sub-license, and assign its license to Your modifications to the Code Samples, without remuneration due to You. You represent and warrant that the aforementioned rights granted to ABBYY shall be free of any third party rights or encumbrances and that You have obtained all necessary rights to grant the rights to ABBYY and that You have, if applicable, paid all necessary remuneration to the authors of such modifications. If You do not wish to license to ABBYY Your modifications to the Code Samples, You shall not disclose to ABBYY the source code of such modifications.

3.3. Service Marketing Materials Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly required by applicable law, You will not, and will not permit or authorize third parties to:

• a. reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works based on Service Marketing Materials, except with prior written approval from ABBYY unless such acts are expressly permitted under the applicable laws;
• b. use Service Marketing Materials for any purpose other than to make effective use of the Service.

3.4. Actions by Authorized Users. You are responsible for any actions taken by an Authorized User and are obligated to take appropriate measures to ensure that an Authorized User only adds or removes subscriptions to Service, makes payments or requests Service functionality, with Your prior consent. You will abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with Your use of the Service. In no event will ABBYY be responsible or liable for any damages, fines, taxes, or other consequences of misuse or abuse of the Service by Authorized User or/and End Users. You are solely responsible for the security of Authorized User account information, including the storage of usernames, passwords, and other secret information if applicable, and the choice of strong passwords. ABBYY may from time to time impose, but is not obligated to impose, password and other secret information management policies that You agree to comply with, including but not limited to minimum password strength and maximum password lifetime.

3.5. Unauthorized Use. You shall: (a) immediately notify ABBYY of any unauthorized use of any password or other secret account information or any other known or suspected breach of security related to the Service; (b) report to ABBYY immediately and use best efforts to immediately stop any unauthorized use, copying or distribution of any part of the Service; and (c) not impersonate another user or provide false identity information to gain access to the Service.

3.6. Data. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership, and usage rights for all of Your Data and any Uploaded Data sent by You, Your Authorized Users/End Users to the Service. You will abide by and will be solely responsible for any breach of applicable local, state, national, and foreign law, treaty, or regulation in connection with Your Data and Uploaded Data, including those related to data privacy, international communications, and the transmission of technical or personal data.

3.7. To perform the obligations under this Agreement in an efficient manner, ABBYY and its Affiliates may need to process and store Your Data and Uploaded Data. You shall provide to ABBYY, in compliance with the Data Protection Laws, certain information that is reasonably required by ABBYY to provide the Service, including but not limited to the name, surname, and e-mail address of You, of Your relevant personnel and of the Authorized Users, and information on when, how and how much of the Service functionality You use. You hereby authorize ABBYY and/or ABBYY Affiliate to process this subset of Your Data and Uploaded Data (including, but not limited to, collecting, systematizing, storing, updating, modifying, using, distributing, transferring, depersonalizing, locking or deleting) for the purpose of providing You with the Service, and sending You e-mail messages with information related to ABBYY’s activities. ABBYY guarantees that the data You provide will not be disclosed by ABBYY to any third parties except Approved Contractors or as expressly required or permitted by law and/or as necessary for the performance of this Agreement.

3.8. You hereby authorize ABBYY to send Your designated personnel, agents and representatives who have expressly consented to You to receive e-mail messages about ABBYY’s product and company news, special offers, products usage advices and other information related to ABBYY’s activities. You may remove such personnel’s e-mail addresses from the mailing list at any time by sending an email to [email protected] .

3.9. You shall also receive from ABBYY e-mail messages with critical information related to the Service operation (password-related e-mails, service notifications, etc.).

3.10. You agree that, other than ABBYY’s legal obligations as a processor of certain data stored in the Service, You are solely responsible for complying with any laws, treaties, or regulations in connection with its collection, uploading, use, transfer and other control of any Uploaded Data or Your Data, including personal or confidential data, and shall defend, indemnify and hold ABBYY harmless from and against any and all claims, actions, proceedings, expenses, liabilities, damages, losses, costs, and expenses, including attorneys’ fees, associated with and/or arising from such Uploaded Data. If Uploaded Data processing causes Service failures or leads to the abnormal consumption of computing resources or other exceptional cases adversely affecting the functionality of the Service, You consent to ABBYY’s use of such Uploaded Data for the sole purposes of improving and safeguarding the functionality of the Service.

3.11. Terms and conditions of processing and storage of the Uploaded Data are specified in the Data Processing Addendum (Appendix A) (“DPA”) to this Agreement and shall apply if and to the extent ABBYY processes personal data on Your behalf. In the event of a conflict between any provision in the DPA and any provision in the Agreement or Appendices to it, the DPA shall control.

3.12. To perform the obligations under this Agreement in an efficient manner, ABBYY and its Affiliates may need to process and store Client’s Data (pursuant to ABBYY’s Privacy Policy available at https://www.abbyy.com/privacy/ ) and Uploaded Data (pursuant to DPA).

3.13. Data Storage. ABBYY, alone, has the right and sole discretion, to determine the geographic location of the Service’s servers. In this regard, or for purposes of sharing or disclosing, ABBYY reserves the right to transfer Your Data outside of Your country. By using the Service, You consent to any such transfer of data outside of Your country for the purpose of enabling You to use the Service. Client is responsible for obtaining any legally-required consents from End Users for the processing of their data by the Service.

3.14. Service Storage Location. Unless otherwise agreed between the Parties, Uploaded Data will be stored and processed in the European Union. ABBYY, alone, has the right and sole discretion, to determine the location of the servers of the Service within the European Union. In this regard, or for purposes of sharing or disclosing, ABBYY reserves the right to transfer Uploaded Data outside of Your country. You are responsible for obtaining any legally-required consents from End Users for the processing Uploaded Data in the Service.

4. Pricing

4.1. To the extent that a deposit or prepayment must be paid before providing any portion of the Service, ABBYY’s obligations under this Agreement are conditional upon its receipt of such deposit or prepayment. All Service Fees are non-cancellable and are non-refundable, except as otherwise provided for herein or as required under applicable law.

4.2. ABBYY may change the prices and payment procedure at any time, by giving notice thereof to You or by amending this Agreement otherwise. Such revised prices and payment terms will be binding on You immediately for all subsequent purchases.

5. Terms of Payment

5.1. ABBYY will send You an invoice for Service Fees, which are due for payment. You shall make the payment in accordance with the terms of the invoice by means of electronic transfer within thirty (30) days following Your receipt of the invoice, unless otherwise specified on ABBYY’s invoice sent to You.

5.2. All outgoing bank transfer charges are to be paid by You.

5.3. Without ABBYY’s prior written consent, You may not set off payment of the Service Fees against any amounts ABBYY may owe You.

5.4. All of Your payment obligations to ABBYY shall be deemed fulfilled when the sums due are credited to ABBYY’s bank account.

5.5. If You purchased the Service directly from a Partner then Partner’s terms of payment shall apply.

5.6. Any applicable custom duties, withholding taxes and other similar payments which may be levied or imposed on ABBYY by the authorities of Your country pursuant to the tax legislation or other convention or agreement between the countries of the parties hereto with respect to any of the amount payable to ABBYY, pursuant to this Agreement, shall be borne by You.

6. Confidentiality

6.1. Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 6.2, ABBYY’s “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) consisting of or relating to its technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, including any written or oral information disclosed by ABBYY in relation to the Service, Code Samples, Service Management System and Service Storage, in each case whether or not marked, designated, or otherwise identified as “confidential.” Subject to Section 6.2, Your “Confidential Information” means all Your Data, in each case whether or not marked, designated, or otherwise identified as “confidential.”

6.2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

6.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

(b) except as may be permitted by and subject to its compliance with Section 6.5, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 6.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6;

(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;

(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps with Disclosing Party to prevent further unauthorized use or disclosure; and

(e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with the terms of this Section 6.

6.4. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 6 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

6.5. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.5, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

6.6. Residual Information. It is important for ABBYY to be able to use its skills, experience, expertise, concepts, ideas, and know-how learned or acquired while providing the Service for You, itself or any of its clients in the ordinary course of its business. Therefore, You agree that ABBYY is entitled to retain and use without restriction any of the generalized knowledge, techniques, methodologies, practices, processes, skills, experience, expertise, concepts, ideas, and know-how learned or acquired by ABBYY’s personnel in the course of providing the Service for You hereunder solely to the extent that they are retained in intangible form in the unaided memory of the personnel of ABBYY without intentionally memorizing such information or using any Your Confidential Information to refresh its recollection (“Residual Information”). Nothing in this Agreement is to be construed as to prevent ABBYY from being able to do so, and further, such retention and use of Residual Information shall not be construed as a breach of this Agreement.

7. Technical Support

7.1. You may use the public ABBYY FlexiCapture Knowledgebase (http://help.abbyy.com/en-us/flexicapture/12/admin%5Fguide/introduction%5Fag ) and the public ABBYY FlexiCapture Forum (http://www.capturedocs.com/ ) free of charge at any time according to the respective Privacy Policy and Terms of Use, which are accessible from the respective web pages.

7.2. Error means a defect in the Service that leads to an abnormal termination or interruption in the functionality of the Service.

7.3. Technical Support is a service rendered by ABBYY to You regarding possible Errors as well as for solving other problems with access and/or activation of the Service. Technical Support does not include assistance or support for errors, deficiencies, or malfunctions related to a Project.

7.4. If You purchased the Service directly from ABBYY (i.e. not from a Partner), then ABBYY’s Technical Support will be provided free of charge to Your engineers. Your engineers may submit a request to ABBYY via web form https://support.abbyy.com/hc/en-us/requests/new . Technical Support will be available in English. ABBYY will not provide any technical support to End Users.

7.5. If You purchased the Service directly from a Partner then Your support requests should be directed to the Partner and ABBYY’s Technical Support will be provided directly to the Partner.

7.6. ABBYY offers Professional Consulting Services, which You may purchase on an hourly basis. Such services are not included as part of this Agreement.

7.7. ABBYY agrees to make commercially reasonable efforts to take appropriate corrective actions in response to reported Errors report if You provide sufficient information in order for ABBYY to replicate the Error.

7.8. ABBYY will not provide any technical support to any third party except You.

8. Termination

8.1. Term. This Agreement is effective upon the earlier of (i) the date You accept this Agreement or (ii) You begin using the Service, and will continue in effect for as long as You use the Service or until terminated in accordance this Section 8.

8.2. Without prejudice to ABBYY’s other rights and remedies under the Agreement and/or the applicable law, ABBYY has the right to revoke the Service, suspend performance and/or terminate all or any of its obligations and Your rights under the Agreement immediately at any time by giving notice in writing to You if any of the following applies:

• a. You failed to pay invoices when due and continue such payment default for 15 days or more after receipt of ABBYY’s written notice of late payment.
• b. You breach Sections 2, 3, 5, 6 and/or Section 12 of the Agreement;
• c. You become bankrupt or insolvent, or suffer any similar action in consequence of indebtedness or goes into voluntary or compulsory liquidation;
• d. You dispute or contest, directly or indirectly, the validity, ownership or enforceability of any Intellectual Property Right of ABBYY or its Affiliates or its licensors, or counsels, procures or assists any other person to do so, such without prejudice to ABBYY’s other rights and remedies under the applicable law or the Agreement.
• e. ABBYY reasonably determines that Your use of the Service violates the law, misappropriates or infringes the Intellectual Property Rights of a third party, or poses a threat to the security or performance of ABBYY’s network or to any of its clients or suppliers.

8.3. Either party may terminate the Agreement if the other party violates any material provision of the Agreement and if such violation is not cured within thirty (30) days from the date of written notice from the non-violating party advising of that violation.

8.4. You may contact ABBYY by e-mail at [email protected] to deactivate Your login (Account) and cease Your use of the Service at any time.

8.5. Change of Control. ABBYY may terminate this Agreement immediately if You are subject to a change of Control and it is no longer reasonable to expect ABBYY to adhere to the Agreement due to the change of control. ABBYY shall not unreasonably delay negotiations for a new Service agreement with the anticipated owner of Your company. Written requests for a new Service agreement from the new anticipated owner of Your company should be answered not later than within 4 (four) weeks from the date of receipt of the request.

8.6. If You purchased the Service directly from a Partner, Partner may have a right to revoke the Service, limit Your access to it or/and delete some or all Uploaded Data. All disputes between You and such Partner, whether or not relating to any information, data or forms available on or through the Service, will be settled by and between You and such Partner. ABBYY bears no responsibility for resolving such disputes and has no obligation to be involved in any way in any such dispute.

9. Consequences of Termination

9.1. Upon termination of the Agreement, all the rights granted to You thereunder will immediately terminate.

9.2. The expiration or earlier termination of the Agreement shall not have any effect on its provisions that are expressed to operate or to be in force after termination, or any right of action already accrued to ABBYY in respect of any breach by You.

9.3. The following provisions will survive any expiration or termination of this Agreement: Sections 4, 5, 6, 11, 13 and 14.

9.4. Refunds. Upon termination of the Agreement, all payments made in accordance with Section 4 and 5 are deemed non-refundable.

9.5. Upon termination of the Agreement, You shall be required to return (or with ABBYY’s consent destroy and certify such destruction in writing) all copies of ABBYY’s Intellectual Property or/and ABBYY’s Confidential Information provided in connection with this Agreement. Upon completion of the Agreement term, all Your or Authorized Users’ rights to access and use the Service will terminate and ABBYY will irretrievably delete and destroy Your Data, with the only exception of Your Data that has to be retained by law (e.g. financial information) and other information about You that could be necessary for the performance of ABBYY’s obligations after the date of termination or expiration hereof. In any case, ABBYY will, if reasonably possible, inform You in advance and give You the opportunity to export Your data from the Service. The termination or expiration of the Agreement shall not itself give rise to any right for You to receive or demand any compensation for goodwill, Authorized Users expenses or any other payment of any nature from ABBYY and/or its Affiliates, subcontractors and service providers.

10. Copyrights and Trademarks

10.1. All product names are the trademarks or registered trademarks of their respective owners.

10.2. Rights in the Service. ABBYY, its Affiliates or associated companies own all right, title, and interest, including all related intellectual property rights, in and to the Service, Service Marketing Materials, and any feedback provided by You or any other party relating to the Service, Service Marketing Materials. All ABBYY trademarks are the intellectual property of ABBYY, its Affiliates or associated companies and are provided only for reference. ABBYY does not grant You a license to use these trademarks.

10.3. Use of Your company Names. ABBYY may identify You in its advertising and marketing materials as a customer of the Service, and may use Your trademarks, trade names, service marks, and logos in such materials subject to Your reasonable guidelines. Furthermore, ABBYY may disclose some or all of the Service features that You are using.

10.4 Your End-User Agreement shall contain terms in favor of ABBYY that, at a minimum, substantially meet the following requirements:

• a. Statements that Your Application/ Client’s Service utilizes the Service, referred to by the exact name of the Service;
• b. End User is granted only a non-exclusive, nontransferable right to use the Service.
• c. ABBYY shall not be liable to the End User for any general, special, direct, indirect, consequential, incidental, or lost profits or other damages arising out of or related to the Service;
• d. End User will not: (a) de-compile or reverse engineer the software that operates the Service (the “Software”) or its component parts; (b) modify, publish, transmit, license, sublicense, transfer, sell, distribute, reproduce, create derivative or collective works from, or in any way otherwise exploit the Software or make the Software available, in whole or in part; (c) disclose results of any services or program benchmark tests without ABBYY’s prior written consent; (d) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Service available to any third party other than as expressly permitted under the terms of the agreement; (e) transmit files, content, photographs, videos, personal or technical data or any other type of information or data (collectively, “User Content”) that is defamatory or libelous; (f) transmit any User Content that it has no rights to, or for which transmission would constitute infringement of third-party Intellectual Property Rights; or (g) transmit any viruses, malicious code, Trojans, worms, corrupted files, or any other similar software that may damage the operation of another’s computer, data or property, or transmit any other harmful or code technology; and
• e. All disputes between You and End Users, whether or not relating to any information, data or forms available on or through the Service, will be settled by and between You and End User. ABBYY bears no responsibility for resolving such disputes and has no obligation to be involved in any way in any such dispute.

11. Limited Warranty and Disclaimers

11.1. Limited Warranties. Each party represents and warrants to the other that the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

11.2. Internet Delays. ABBYY shall not provide You or Authorized Users with an internet connection or with any hardware and software required to connect to the Internet, and ABBYY is not liable for the quality of Your or Authorized Users’ Internet connection or the quality of the hardware and software that You or Authorized Users use to access the internet. ABBYY is not liable for any malfunction or other problems in telephone networks or services, computer systems, servers, providers, computer hardware, software, or telecoms equipment, or for any malfunction in the operation of e-mail and scripts, howsoever caused, or other damage resulting from such problems. ABBYY shall not be liable for any delay, malfunction, missed or late delivery, removal or loss of any of Your Data.

11.3. Loss of information. You acknowledge that You will be transmitting information over a public computer network and that ABBYY shall not be liable for any loss of information transmitted in this manner.

11.4. ABBYY represents and warrants, throughout the Term of this Agreement, that (i) ABBYY has validly entered into this Agreement and has the legal power to do so, and (ii) ABBYY will provide the Service only in accordance with applicable laws and government regulations. OTHER THAN THE FOREGOING, THE SERVICE AND ALL DATA ARE PROVIDED TO YOU ARE STRICTLY ON AN “AS IS” BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ABBYY, ABBYY’s APPROVED CONTRACTORS, AND ABBYY’S LICENSORS.

11.5. Performance of Your Application /Your Service. ABBYY cannot warrant the performance of any of Your Application/Your Service created by or for You using the Service, nor does ABBYY make any representations or warranties with respect to performance of the Service in conjunction with Your Application/Your Service.

11.6. No warranties for third party software products. ABBYY makes no warranties for any third party software products, which may be included into the Service.

11.7. Warranty disclaimer. Except for the express representations and warranties stated in this Section, ABBYY makes no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy, or completeness of the Service or any data. ABBYY does not represent or warrant that:

• (a) the use of the Service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system, or data,
• (b) the Service will meet Your or any End-user’s requirements or expectations,
• (c) any stored data will be accurate or reliable,
• (d) the results obtained by using the Service are accurate, complete or useful;
• (e) Other than provided in the SLA https://www.abbyy.com/en-us/flexicapture/cloud-sla/ , the operation of the Service or the provision and availability of the Service will be continuous and/or uninterrupted or free from error;
• (f) the quality of any products, services, information, or other material purchased or obtained by You through the Service will meet Your requirements or expectations,
• (g) errors or defects will be corrected, or
• (h) the Service or the server(s) that make the Service available are free of viruses or other harmful components.

11.8. Without prejudice to ABBYY’s obligations as set forth above, You warrant that You are the exclusive owner of all rights to Your Application/Your Service and that the Application does not infringe the Intellectual Property Rights of any third party.

11.9. Service Level. The availability of the Service and its service levels are solely specified by ABBYY and accessible via https://www.abbyy.com/flexicapture/cloud-sla/ . - You hereby irrevocably consent that the additional terms and conditions with relation to technical support and Service level availability (i) shall be applied to this Agreement and (ii) might unilaterally be amended or changed by ABBYY, and (iii) shall be accessible via https://www.abbyy.com/flexicapture/cloud-sla/ .

11.10. ABBYY, in its sole discretion, may provide a partial refund or provide additional page volume if the guaranteed Service Level according to Section 11.9 is not met.

• a. In order to be eligible for such compensation, You have to submit a claim to ABBYY fc_cloud@abbyy.com not later than 10 (ten) calendar days after the end of applicable calendar quarter.
• b. You must provide to ABBYY all reasonable details regarding the claim, including, but not limited to, detailed descriptions of the incident(s), the duration of the incident, network trace routes, the URL(s) affected and any attempts made by You to resolve the incident.
• c. In order to be eligible to submit a claim with respect to any incident, You must first have notified ABBYY of the incident within 24 (twenty-four) hours after incident started
• d. ABBYY will use all information reasonably available to it to validate claims and make a good faith judgment on whether the Service Level guarantee applies to the claim.
• e. In the event guaranteed service level is not met, ABBYY will calculate amount of pages that were not processed in time due to reported incidents based on incidents duration and average processing speed by You. ABBYY will choose at its own discretion either to credit You with this amount of pages, or deduct this amount from next billing period, or refund You for their monetary equivalent as defined in this Agreement.

11.11. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ABBYY MAKES NO OTHER WARRANTIES OR GUARANTEES, EITHER EXPRESSED OR IMPLIED, REGARDING THE SERVICE, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.

12. Limitation of Liability and Indemnification

12.1. Limitation of Liability. ABBYY’s responsibility for damages arising out or in connection with this Agreement shall be limited to the amount paid by You under this Agreement during the trailing 12 months period before the damage appeared that gives rise for Your claim.

The limitation of liability set forth in this section 12.1 shall not restrict any mandatory statutory liability, in particular, to liability under the German Product Liability Act, liability for assuming a specific guarantee or liability for culpably caused personal injuries.

You are required to take all reasonable measures to avoid and reduce damages.

12.2. Indemnification by You. You shall indemnify, defend, and hold harmless ABBYY and its subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, an “ABBYY Indemnitee”) from and against any and all third-party claims, injuries, judgments, damages, liabilities, losses, costs and expenses, including, without limitation, reasonable attorneys’ fees, court costs and other legal expenses (collectively, “Losses”) incurred by any ABBYY Indemnitee that arise out of or result from, or are alleged to arise out of or result from:

• a. Your Data/Uploaded Data, including any Processing of Your Data/Uploaded Data by or on behalf of ABBYY in accordance with this Agreement; or
• b. any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on Your behalf or any Authorized User, including ABBYY’s compliance with any specifications or directions provided by or on behalf of You or any Authorized User to the extent prepared without any contribution by ABBYY.

12.3. You will indemnify any ABBYY Indemnitee against

• a. all damages, costs, and attorney fees finally awarded against ABBYY or an ABBYY Indemnitee in any proceeding under Section 12.2;
• b. all out-of-pocket costs (including reasonable attorney fees) reasonably incurred by ABBYY or an ABBYY Indemnitee in connection with the defense of such proceeding (other than attorney fees and costs incurred without Your consent after You have accepted defense of such claim); and
• c. if any proceeding or claim arising under Section 12.2 is settled between You and the third-party, You will pay all amounts agreed to by You as part of such settlement and You shall not enter into any settlement without the written consent of ABBYY.

13. Miscellaneous Provisions

13.1. ABBYY may assign its rights and obligations hereunder (or any part thereof) to a third party at any time without notice or Your consent. You may not assign or transfer any of the rights or responsibilities set forth herein without the express written consent of ABBYY, and any purported attempt to do so shall be deemed void.

13.2. Dispute Resolution. The following procedure shall be observed to resolve any dispute arising between You and ABBYY under this Agreement or otherwise. If You have reasons to believe that Your rights and interests have been violated in connection with the use of the Service, You may send a complaint to ABBYY at FC_cloud@abbyy.com . ABBYY shall respond to the complaint within twenty (20) business days of receipt of the complaint. The response shall be sent to Your e-mail address as indicated in the complaint. If the parties fail to resolve the dispute in this manner, the dispute shall be resolved in accordance with the terms of this Agreement. ABBYY is not obligated to respond to anonymous complaints or complaints from users who cannot be identified with the data they provided to register.

13.3. Waiver. The failure of either party to enforce compliance with any provision of this Agreement shall not constitute a waiver of such provision unless accompanied by a clear written statement that such provision is waived. A waiver of any default hereunder or any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Except as expressly provided herein to the contrary, the exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity.

13.4. Severability. If any part of this Agreement is found to be or should become illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any rights to You under this Agreement is found to be illegal, unenforceable, or invalid, the right granted will immediately terminate.

13.5. Interpretation. The headings appearing at the beginning of several Sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement.

13.6. No partnership or agency, Nothing in this Agreement or any circumstances associated with it or its performance give rise to any relationship of agency or partnership between the You and ABBYY.

13.7. Entire Agreement. This Agreement (along with all associated Appendices) is the final and complete expression of the agreement between these parties regarding the usage of the Service. This Agreement supersedes all previous oral and written communications regarding these matters, including any marketing materials or documentation provided by ABBYY prior to the execution of this Agreement, unless specifically referred to and incorporated in this Agreement. No employee, agent, or other representative of ABBYY has any authority to bind ABBYY with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. All of the terms and conditions stated in the Agreement apply both to the Service as a whole and to any of the Service’s separate parts.

13.8. Contact Us. Should You have any questions concerning this Agreement, or if You desire to contact ABBYY for any reason, please contact Your ABBYY sales representative or Partner.

13.9. Any notices or communications required or permitted to be given by this Agreement must be (i) given in writing and (ii) personally delivered or mailed, by prepaid, certified mail or overnight courier, or transmitted by electronic mail transmission, to the party to whom such notice or communication is directed, to the mailing address or regularly-monitored electronic mail address of such party. Notice shall be deemed to have been given on the date that receipt of the electronic mail transmission is confirmed by recipient or if by post, on the date that the notice is delivered.

13.10. All the terms and periods herein are calculated as calendar periods, unless otherwise expressly specified.

13.11. ABBYY may list and publish in different materials and/or on the internet Your name and the name of Your Application/Your Service in an index of clients/products that use technology developed by ABBYY.

13.12. ABBYY may unilaterally change this Agreement at any moment in case: (a) changes are required to comply with the applicable law, applicable regulation, a court order or guidance issued by a regulator or agency; or (b) changes do not: (i) result in a violation of Your rights; and (ii) otherwise have a material adverse impact on Your rights under the Agreement, as reasonably determined by ABBYY. ABBYY will notify You with at least 15 days notice before changes will take effect (or shorter period as may be required to comply with the applicable law, applicable regulation, a court order or guidance issued by a regulator or agency) by either: (a) email; or (b) alerting You via the Service interface. If You object to any such change, You must terminate the Agreement and stop using Service. ABBYY is not required to notify You about editorial changes.

13.13. Force Majeure. If the performance of the provisions of the Agreement or any obligation herein is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of the party obliged to perform it, the party so affected, upon giving prompt notice to the other party, shall not be liable for any delay or failure to perform the provisions of the Agreement or any obligations herein to the extent of such prevention, restriction or interference, but the party so affected shall use its best efforts to avoid or remove such causes of non-performance and shall resume the performance of the provisions and obligations as soon as possible after such causes are removed or diminished.

13.14. Applicable Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany excluding the Convention for the International Sale of Goods. The parties agree that they shall submit any and all disputes, controversies or differences that in the opinion of a party cannot be settled amicably, to the court of Munich, Germany. This clause shall in no event be construed so as to deprive a party to institute interim injunction proceedings at a different court of another country.

Appendix A

Data Protection Addendum

Introduction:

(A) This Data Protection Addendum (“DPA”) specifies the data protection obligations of the parties, which arise from contract data processing on behalf, as stipulated in FlexiCapture Cloud Service Agreement (the “Agreement”). It applies to all activities performed in connection with the Agreement in which the staff of ABBYY or a third party acting on behalf of ABBYY may come into contact with the Uploaded Data of the Client.

(B) This DPA sets out the additional terms, requirements and conditions on which ABBYY will process Uploaded Data when providing services under the Agreement. This DPA contains the mandatory clauses required by Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) (“GDPR”).

1. Definitions

“Client” - refer to and include any person and/or any entity that is accepting the Agreement.

“Сontroller” has the same meaning under the Data Protection Laws.

“Data Protection Laws” means all applicable laws governing the protection of Personal Data including, but not limited to, the General Data Protection Regulation 2016/679 (“GDPR”) and all other laws implementing or supplementing the GDPR including the German Federal Data Protection Act 2017 (“BDSG”).

“Data Subject” means the individual to whom Personal Data relates.

“Personal Data” means any information included into Uploaded data relating to an identified or identifiable individual.

“Processing” means processing of Personal Data as defined under the Data Protection Laws, including the storage, amendment, transfer, blocking or erasure of personal data by ABBYY acting on behalf of the Client.

“Processor” has the same meaning under the Data Protection Laws.

“ABBYY” – means ABBYY Europe GmbH Landsberger Str. 300 80687 Munich, Germany.

“Instruction” means the written instruction, issued by Client to ABBYY, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to, de-personalizing, blocking, deletion, making available). Instructions shall initially be specified in the Agreement and may, from time to time thereafter, be amended, amplified or replaced by Client in separate written instructions (individual instructions).

“Personal Data Breach” - a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.

“Standard Contractual Clauses”, “SCC” - standard data protection clauses adopted by the European Commission as defined in the Article 46 of the GDPR.

This DPA is subject to the terms of the Agreement and is incorporated into the Agreement by reference. Interpretations and defined terms set forth in the Agreement apply to the interpretation of this Agreement, unless otherwise explicitly stated herein.

The Annexes form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Annexes.

A reference to writing or written includes faxes and email.

In the case of conflict or ambiguity between:

(a) any provision contained in the body of this DPA and any provision contained in the Annexes, the provision in the body of this DPA will prevail;

(b) any of the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA will prevail.

2. Scope and Responsibility

2.1. The Client and ABBYY acknowledge that for the purpose of the Data Protection Laws, the Client is the Controller and ABBYY is the Processor. In some circumstances, Client may be a Processor, in which case Client appoints ABBYY as Client’s sub-processor, which shall not change the obligations of either Client or ABBYY under this DPA, as ABBYY will always remain a Processor with respect to the Client in such event.

2.2. Client retains control of the Personal Data and remains responsible for its compliance with its obligations under the applicable Data Protection Laws, including providing any required notices and obtaining any required consents for the lawful Processing of Personal Data made available to or otherwise transferred to ABBYY, and for the processing instructions it gives to ABBYY.

2.3. ABBYY shall process Personal Data on behalf of Client. Processing shall include such actions as may be specified in the Agreement and in the scope of work. Within the scope of the Agreement, Client shall be solely responsible for complying with the statutory requirements relating to the lawfulness of the data processing.

2.4. Based on this responsibility, Client shall be entitled to request that ABBYY, subject to the Data Protection Laws, rectifies, deletes, blocks and makes available Personal Data during and after the term of the Agreement at Client’s cost. ABBYY shall promptly comply with any of Client’s request or instruction requiring the ABBYY to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorized Processing.

2.5. The provisions of this DPA shall also apply if testing or maintenance of automatic processes or of Processing equipment is performed on behalf of Client.

3. ABBYY’s obligations

3.1. ABBYY shall process Personal Data only within the scope of Client’s Instructions as set-out in the Agreement, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Union or Member State law to which ABBYY is subject. In this case, ABBYY shall inform Client of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest.

3.2. ABBYY will, insofar this is possible, by appropriate technical and organizational measures, reasonably assist Client with meeting Client’s compliance obligations with respect to the rights exercised by Data Subjects under the Data Protection Laws (particularly the Data Subject’s Rights stated in Chapter 3 of the GDPR and related to Data Subject’s requests), taking into account the nature of the data Processing. Taking into account the nature of Processing and any information available to ABBYY, ABBYY will further assist the Client in ensuring compliance with the obligations pursuant to Articles 32 to 36 GDPR, in particular its obligations to undertake data protection impact assessments and report to and consult with supervisory authorities under the Data Protection Laws. In a situation where requested level of assistance will be excessive or unreasonably burdensome for ABBYY, any such assistance will be exercised at Client’s cost.

3.3. ABBYY shall implement appropriate technical and organizational measures required pursuant to Article 32 GDPR with respect to the Personal Data, taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of Data Subjects. Such measures shall be designed to ensure a level of security appropriate to the risk in order to protect Personal Data from accidental or unlawful destruction, loss, alteration, unauthorized disclosure, access or use. Such measures hereunder shall include, but are not limited to taking reasonable steps to achieve the following:

• (a) the prevention of unauthorized persons from gaining access to Personal Data Processing systems (physical access control),
• (b) the prevention of Personal Data Processing systems from being used without authorization (logical access control),
• (c) persons entitled to use a Personal Data Processing system gain access only to such Personal Data as they are entitled to accessing in accordance with their access rights, and that, in the course of processing or use and after storage, Personal Data cannot be read, copied, modified or deleted without authorization (data access control),
• (d) Personal Data cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media, and that the target entities for any transfer of Personal Data by means of data transmission facilities can be established and verified (data transfer control),
• (e) the establishment of an audit trail to document whether and by whom Personal Data have been entered into, modified in, or removed from Personal Data Processing systems, (entry control),
• (f) Personal Data Processed are Processed in accordance with the Instructions (control of instructions),
• (g) Persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality,
• (h) Personal Data are protected against accidental destruction or loss (availability control),
• (i) Personal Data collected for different purposes can be processed separately (separation control).

A measure as referred to in lit. a) to i) above shall be in particular, but shall not be limited to, the use of appropriate encryption technology. These technical and organizational measures are listed in the Annex 2 to this DPA.

3.4. The ABBYY’s data protection officer is:
Stefan Eisert SEDC
TÜV Süd Sec IT GmbH
Magdalenenweg 12
85457 Wörth
Phone: 08123-928639
Mobile: 0171-4345367
Email: sedc1@web.de

3.5. Client’s Notification Email Address is the Email Address specified upon the registration to the Service. “Notification Email Address” means the email address (if any) designated by Client to receive certain notifications from ABBYY relating to this DPA.

3.6. If applicable, Client shall retain title as to any carrier media provided to ABBYY as well as any copies or reproductions thereof. ABBYY shall store such media safely and protect them against unauthorized access by third parties. ABBYY shall, upon Client’s request, provide to Client all information on Client’s Personal Data and information. ABBYY shall be obliged to securely delete any test and scrap material based on an Instruction issued by Client on a case-by-case basis. Where Client so decides, ABBYY shall hand over such material to Client or store it on Client’s behalf.

3.7. ABBYY shall provide reasonable assistance to the Client with any data protection impact assessment which the Client is required to undertake in order to Comply with Articles 35 and 36 of the GDPR, in each case solely in relation to the processing of Personal Data and taking into account the nature of the Processing and information available to ABBYY and shall make available to Client on request such information as is reasonably necessary to demonstrate its compliance with this DPA and its obligations under Article 28 of the GDPR and shall allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client for the purpose of demonstrating compliance by ABBYY with its obligations under Data Protection Laws in respect of the Personal Data. ABBYY may object to the deployment of a specific auditor if such auditor (i) is not subject to confidentiality regarding the results of such audit (except vis-à-vis ABBYY and Client), (ii) is a competitor of ABBYY, (iii) is affiliated with a competitor of ABBYY.

3.8. ABBYY will store Personal Data for processing purposes (duration of the storage is subject to the clause 3.15 of the Agreement) either in the European Union.

4. Client’s obligations

4.1. Client shall be separately responsible for conforming with such statutory data protection regulations including the Data Protection Laws as are applicable to it and shall ensure that the Personal Data may lawfully be processed by ABBYY under the Agreement.

4.2. Client shall inform ABBYY without undue delay and comprehensively about any errors or irregularities related to statutory provisions on the Processing of Personal Data detected during a verification of the results of such Processing or otherwise arising following the date of this DPA.

4.3. Client shall be obliged to maintain the register as defined in Article 30 of the GDPR. Client shall promptly notify ABBYY of the exercise of any rights by Data Subjects affecting the Processing of Personal Data by ABBYY.

4.4. Client shall, upon termination or expiration of the Agreement and by way of issuing an Instruction, stipulate, within a period set by ABBYY, the measures to return data carrier media or to delete stored data.

4.5. Any additional cost arising out of ABBYY’s performance under Instructions outside the Agreement’s scope of work or otherwise not contemplated by this DPA shall be borne by Client.

5. Audit Obligations

ABBYY shall provide a copy of its most current security report upon Client’s written request and subject to the confidentiality provisions of the Agreement. If Client requires additional information beyond that which is stated in the Report, Client may contact ABBYY at privacy_eu@abbyy.com to request an on-site audit of the architecture, systems and procedures relevant to the protection of Client Personal Data that are controlled by ABBYY. Notwithstanding of the above, if an audit is excessive or unreasonably burdensome for ABBYY, then Client shall reimburse ABBYY for such excessive or unreasonably burdensome audit at ABBYY’s then-current professional services rates, which shall be made available to Client upon request. Before the commencement of any such audit, Client and ABBYY will mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Client shall be responsible. Client shall promptly notify ABBYY with information regarding any non-compliance discovered during the course of an audit.

6. Sub-processing

6.1. Client agrees that ABBYY may engage ABBYY’s Affiliates and third party sub-processors (collectively, “sub-processors”) to Process the Personal Data on ABBYY’s behalf. Client acknowledges that ABBYY’s contractual obligations hereunder, or the parts of the services, will be performed by a subcontractor and consents to use of sub-processors by ABBYY as described in this Section 6 to fulfil its contractual obligations under the Agreement and to provide certain services on ABBYY’s behalf such as support services. The list of current sub-processors authorized by Client is provided in the Annex 1 hereof.

6.2. ABBYY undertakes to enter into a written agreement with any applicable sub-processors and such agreement will contain the same data protection obligations as set out in this DPA. ABBYY will remain responsible for its compliance with the obligations stated herein and for any acts or omissions of the sub-processors.

6.3. ABBYY may, by giving no less than thirty (30) days’ notice to Client, add or make changes to the sub-processors. Client may object to the appointment of an additional sub-processor within fourteen (14) calendar days of such notice on reasonable grounds relating to the protection of the Personal Data, in which case ABBYY shall have the right to cure the objection through one of the following options (to be selected at ABBYY’s sole discretion):

• (a) ABBYY will cancel its plans to use the Sub-processor with regard to Personal Data or will offer an alternative to provide the Subscription Services without such Sub-processor; or
• (b) ABBYY will take the corrective steps requested by Client in its objection (which remove Client’s objection) and proceed to use the sub-processor with regard to Personal Data; or
• (c) ABBYY may cease to provide or Client may agree not to use (temporarily or permanently) the particular aspect of the Subscription Services that would involve the use of such Sub-processor with regard to Personal Data, subject to a mutual agreement of the parties to adjust the remuneration for the Subscription Services considering the reduced scope of the Subscription Services.

If none of the above options are reasonably available and the objection has not been resolved to the mutual satisfaction of the parties within 30 days after ABBYY’s receipt of Client’s objection, either party may terminate the Agreement and Client will be entitled to a pro-rata refund for prepaid fees for Subscription Services not performed as of the date of termination.

7. Data Breach

ABBYY will without undue delay notify Client if it becomes aware of any Personal Data Breach in accordance with applicable Data Protection Laws.

Immediately following any Personal Data Breach, the parties will coordinate with each other to investigate the matter. ABBYY will reasonably co-operate with Client in Client’s handling of the matter.

ABBYY will not inform any third party of any Personal Data Breach without first obtaining Client’s prior written consent, except when required to do so by Data Protection Laws or any other applicable Union or Member State laws.

ABBYY will cover all reasonable expenses associated with the performance of the obligations under this Section 7 unless the matter arose from Client’s specific instructions, negligence, willful default or breach of the Agreement, in which case Client will cover all reasonable expenses.

ABBYY will also reimburse Client for actual reasonable expenses that Client incurs when responding to a Personal Data Breach to the extent that ABBYY caused such a Personal Data Breach, including all costs of notice and any remedy.

8. Duties to Inform, Mandatory Written Form, Choice of Law, Duration

8.1. Where Client’s Personal Data becomes subject to search and seizure, an attachment order, confiscation during bankruptcy or insolvency proceedings, or similar events or measures by third parties while being Processed, ABBYY shall inform Client without undue delay. ABBYY shall, without undue delay, notify to all pertinent parties in such action, that any Personal Data affected thereby is in Client’s sole property and area of responsibility that Personal Data is at Client’s sole disposition.

8.2. No change of or amendment to this DPA and all of its components, including any commitment issued by ABBYY, shall be valid and binding unless made in writing and unless they make express reference to being a change or amendment to these regulations. The foregoing shall also apply to the waiver of this mandatory written form.

8.3. To the extent required by applicable Data Protection Laws, this DPA shall be governed by the law of the applicable jurisdiction. In all other cases, this DPA shall be governed by the laws of the same jurisdiction stated in the Agreement for governing the Agreement.

8.4. The term of this DPA shall follow the term of the Agreement. Upon termination or expiration of the Agreement, ABBYY shall, in accordance with the terms of the Agreement, delete or make available to Client for retrieval all relevant Personal Data (including copies) in ABBYY’s possession, save to the extent that ABBYY is required by any applicable Union or Member State law to retain some or all of the Personal Data. In such event, ABBYY shall extend the protections of the Agreement and this DPA to such Personal Data and limit any further processing of such Personal Data to only those limited purposes that require the retention, for so long as ABBYY maintains the Personal Data.

9. List of Personal Data elements and Purpose

9.1. The purpose of the data processing by ABBYY is the provision of its services to Client. ABBYY provides for the Client the following service:

Document recognition, document conversion, and data capture service using OCR (optical character recognition) technologies.

9.2. The following types of data are processed:

The Subject Matter of the processing of personal data comprises the following data types/categories (List/Description of the Data Categories)

Documents, images, and other files that the data subjects choose to upload to the Service (to the extent that these comprise personal data)

• • First and last name
• • Contact information (title, position, company, email, phone, physical business address)
• • Birthdate and place
• • ID document number and related data
• • IP-address
• • Invoice and receipt data

Neither Client nor End Users authorized by Client shall use the Service to process Special Categories of Personal Data about (this includes details about your race or ethnicity, religious or philosophical beliefs, sex life, sexual orientation, political opinions, trade union membership, information about your health and genetic and biometric data). Nor will Client process or give instructions to process any information about criminal convictions and offences.

Client is liable for any Personal Data that is provided or otherwise made available to ABBYY in excess of the categories of data described above (“Excess Data”). ABBYY’s obligations under the Agreement of this DPA shall not apply to any such Excess Data.

9.3. The following people and groups of people are affected:

The Categories of Data Subjects comprise:

• • Client
• • Client’s Employees
• • End Users
• • Authorized Users
• • Contact Persons
• • Other Data Subjects about whom information included in Uploaded Data provided by the Client
• • Contact Persons, Employees and Representatives categories mentioned above in s. 9.3

Annex 1

Sub-processors

Client acknowledges that ABBYY’s contractual obligations hereunder, or the parts of the deliverables defined below, will be performed by sub-processors:

• 1. Microsoft Ireland Operations Ltd. Carmenhall Road, Sandyford, Dublin 18, Ireland

Annex 2

Technical and organizational measures

ABBYY and the Client agree that the technical and organizational measures are an integral and an effective part of this DPA. This applies subject to the provision that these technical and organizational measures may be adopted to the newest developments from time to time. ABBYY will inform without any further delay the Client about any changes of its security guidelines.

General practices. ABBYY has implemented and will maintain for the Services appropriate technical and organizational measures, internal controls, and information security measures as provided by Data Protection Law (including pursuant to Article 32 of the GDPR) to protect Personal Data against accidental loss, destruction, or alteration; unauthorized disclosure or access; or unlawful destruction. Client is wholly responsible for implementing and maintaining security within any interface and Client’s Services\Application provided by Client, or on Client’s behalf.

• a. Service. For the Service. ABBYY has implemented and will maintain the following:
  • 1. Security roles and responsibilities. ABBYY personnel authorized to Process the Personal Data are subject to confidentiality obligations.
  • 2. Asset handling. ABBYY restricts access to Personal Data. ABBYY imposes restrictions on printing Personal Data and has procedures for disposing of printed materials that contain Personal Data.
  • 3. Logging and Reporting. ABBYY will use logging and reporting systems allowing to check whether data have been entered, changed, or removed (deleted).
• b. Human resources security.
  • 1. Security training.
       ABBYY informs its personnel about relevant security procedures and their respective roles. ABBYY also informs its personnel of possible consequences of breaching the security rules and procedures. ABBYY will only use anonymous data in training.
  • 2. Physical access to facilities. ABBYY limits access to facilities where information systems that Process Personal Data are located.
  • 3. Protection from disruptions. ABBYY uses a variety of industry standard systems to protect against loss of data due to power supply failure or line interference.
  • 4. Component disposal. ABBYY uses industry standard processes to delete Personal Data when it is no longer needed.
• c. Communications and operations management.
  • 1. Data recovery procedures. The Service includes replication features that facilitate recovery of Personal Data in the event a particular machine or cluster fails.
  • 2. On an ongoing basis, ABBYY maintains multiple copies of Personal Data from which Personal Data can be recovered. ABBYY does not preserve state or data within a virtual machine, which will be restored to its original state.
  • 3. ABBYY has anti-malware controls to help avoid malicious software gaining unauthorized access to Personal Data, including malicious software originating from public networks.
• d. Domain: access control.
  • 1. ABBYY maintains a record of security privileges of individuals having access to Personal Data.
  • 2. ABBYY maintains and updates a record of personnel authorized to access ABBYY systems that contain Personal Data.
  • 3. ABBYY identifies those personnel who may grant, alter or cancel authorized access to data and resources.
  • 4. Technical support personnel are only permitted to have access to Personal Data when needed.
  • 5. ABBYY restricts access to Personal Data to only those individuals who require such access to perform their job function.
  • 6. ABBYY uses industry standard practices to identify and authenticate users who attempt to access information systems. Where authentication mechanisms are based on passwords, ABBYY requires that the passwords are renewed regularly. Where authentication mechanisms are based on passwords, ABBYY requires the password to be at least eight characters long. ABBYY ensures that de-activated or expired identifiers are not granted to other individuals.
• e. Audits and job control.
  • 1. ABBYY will select Subcontractors according to the standards of confidentiality set forth in this DPA.
  • 2. ABBYY will monitor by way of regular reviews the performance and fulfillment of this DPA.
  • 3. ABBYY will make available to Client all information necessary to demonstrate compliance with Data Protection Law (including the obligations laid down in Article 28 of the GDPR) and allow for and contribute to audits, including inspections, conducted by Client or another auditor mandated by Client. Client audit will be limited in time to a maximum of 5 business days and scope as reasonably agreed in advance between the Parties. Reasonable advance notice of at least thirty days is required, unless Data Protection Law requires earlier audit. Client and ABBYY will each bear their own expenses for conducting the audit. However, in case of excessive or unreasonably burdensome audit, Client should reimburse ABBYY for any such audit in accordance with Section 5 of this DPA.

Terms of Service Standard GDPR DPA Universal DPA Universal DPA with GDPR Addendum

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