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Service Agreement

ABBYY FlexiCapture Cloud Service Agreement

ABBYY will provide You with the Service subject to the terms of this ABBYY FlexiCapture Cloud Service (Subscription) Agreement (hereinafter referred to as “Agreement”). By using the Service, You agree to be bound by this Agreement and use the Service in compliance with this Agreement.

BEFORE ACCEPTING THIS AGREEMENT, CAREFULLY READ THE TERMS OF THIS AGREEMENT. BY CLICKING A BOX INDICATING YOUR AT THE END OF THIS DOCUMENT OR BY EXECUTING A SIGNUP FORM THAT REFERENCES THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IN CASE IF YOUR AUTHORIZED USERS ARE OFFERED TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, SUCH AUTHORIZED USERS, SUBJECT TO CLICKING A BOX INDICATING SUCH ACCEPTANCE OR EXECUTING THE NAMED SIGNUP FORM, SHALL THEREBY ENTER INTO THIS AGREEMENT ON BEHALF OF YOU, AND YOU ACKNOWLEDGE AND AGREE THAT SUCH ACCEPTANCE SHALL LEGALLY BIND YOU 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 THE ACCEPT BUTTON AND DO NOT USE THE SERVICE.

1. Definitions

1.1. "ABBYY" means ABBYY Europe GmbH, a company duly incorporated under the laws of the Federal Republic of Germany having its registered office at Landsberger Str. 300, 80687 Munich, Germany.

1.2. "Authorized Users" means individuals who are authorized by You to use the Service, and who have been supplied Account User Name and User password by You (or by ABBYY at Your request). Authorized Users may include Your employees, consultants, contractors, and agents.

1.3. "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 Your Authorized Users to the Service in the course of using the Service, or automatically collected about Authorized Users.

1.4. "Service" means "ABBYY FlexiCapture Cloud" Web-service accessible via https://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 “FlexiCapture Cloud”, as well as ancillary online or offline Services and services, audio, visual and text information.

1.5. “Account” means a collection of data associated with a particular Authorized User of the Service. Each account comprises a User Name and User password, and defines various settings for usage of Service. Account is a sub-entity of a Tenant.

1.6. “You” “Your” means any person and/or any entity that has registered for the Service and has accepted this Agreement.

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

1.8. “Intellectual Property Rights” means all rights of any nature in patents, registered designs, registered trade marks and service marks, and all extensions and renewals thereof, unregistered trade marks 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.

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

1.10. “Service Marketing Materials” means picture samples, demo samples, user’s guides, notification texts and other marketing materials made available to You through https://flexicapture.com/ and https://www.abbyy.com/, Your personal Administration & Monitoring Station or through e-mail in connection with using the Service.

1.11. “Service Storage” means software and hardware used by ABBYY for Your Data storage.

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

1.13. “Uploaded Data” means any data, information, or material uploaded by You or Authorized Users to the Service Storage in the course of using the Service. Uploaded Data is a subset of Your Data.

2. Service Scope

2.1. Scope. In consideration of the Service Fees paid and subject to the terms and conditions hereof and as specifically set forth in Appendices (if any), ABBYY grants to You a limited, non-exclusive, revocable, non-transferable, royalty-bearing right to use the Service. 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 without notice. 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. ABBYY is under no obligation to make any new features or feature modifications available as part of the Service.

2.3. Limits. ABBYY may impose limits on Your usage of the Service including but not limited to maximum Document size, peak Document rates, and connection timeouts, and ABBYY will be the sole judge of the reasonableness of such limits. If You exceed any limits, ABBYY may, at its sole discretion, remedy the situation by blocking or removing over-limit usage. ABBYY will notify You about any blocking or removing over-limit usage.

2.4. Service Cap. ABBYY offers to agree with You an individual cap or limit on usage of the Service by You in order to avoid that You are using the Service accidentally more than You originally were planning to do so. The individual Service Cap is defined in Your Account.

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 a limited number of third parties, whether companies or individual subcontractors as well as ABBYY affiliates (“Approved Contractors”) which have been determined by it 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.

2.7. Service Users. ABBYY will make the Service available to You and Authorized Users for access and use by Authorized Users solely for Your internal business purposes, except as otherwise provided in a separate 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 relation to Your use of the Services in accordance with the applicable laws. You and/or Your Authorized Users on behalf of You accept this Agreement when you start using the Service by clicking the checkbox on the registration form accepting this Agreement.

2.8. You and/or Your Authorized Users on behalf of You must register to use the Service and provide certain information about Yourself and/or the Authorized Users about to start using the Service. Registration for the Service is free of charge.

2.9. 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 Service and any part thereof or copy thereof.

3. General Obligations

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

  • (a) provide, within a term of max. 5 (five) years after execution of this Agreement on-line services, whether commercial or non-commercial, through the use of the Service while providing the similar functionality as the Service or as ABBYY FineReader Online has to any third party via global network (Internet) without prior written consent of ABBYY;
  • (b) circumvent or disable any technical features or measures in Service;
  • (c) try to make denial-of-service attack (DoS) or distributed denial-of-service (DDoS) attack;
  • (d) use the Service for CAPTCHA breaking;
  • (e) use the Service in any way not listed in the online documentation. You acknowledge and agree that ABBYY may unilaterally change the terms set forth in this Section 3.1(e) of the Agreement and related to online documentation. The latest version of the online documentation will always be available at https://www.abbyy.com/en-eu/support/flexicapture/12/pl/sr/ and https://help.abbyy.com;
  • (f) 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 such acts are expressly permitted under the applicable laws;
  • (g) misuse the Services by knowingly introducing viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful.

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

  • 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;
  • use Service Marketing Materials for any purpose except the purpose related to the Service usage.

3.3. Actions by Authorized Users. You are liable for any actions taken by an Authorized User and are obligated to take appropriate measures to avoid that an Authorized User, without Your prior consent, adds or removes subscriptions to Service, makes payments or requests Service functionality. You are solely responsible for all activity by Authorized Users, and 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 Authorized Users. You are solely responsible for the security of Authorized User account information, including the storage of user names, 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, included but not limited to minimum password strength and maximum password lifetime.

3.4. Unauthorized Use. You will: (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; (b) report to ABBYY immediately and use best efforts to immediately stop any unauthorized copying or distribution of any part of the Service; and (c) not impersonate another user or provide false identity information to gain access to or use the Service.

3.5. Data. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership, and right to use for all of Your Data and any data sent by You in requests to 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, including those related to data privacy, international communications, and the transmission or technical or personal data.

3.6. You hereby acknowledge and agree that Your Data will be processed by ABBYY Europe GmbH, registered at Landsberger Str. 300, 80687, Munich, Germany. The terms and conditions of processing and storage of Your Data are specified in the Data Processing Addendum (“DPA”) to this Agreement. In the event of a conflict between any provision in the DPA and any provision in the Agreement or any supplements to the Agreement, the DPA shall control and govern.

3.7. To perform the obligations under this Agreement in an efficient manner, ABBYY may need to process and store Your Data.
You hereby shall provide to ABBYY, in compliance with the Data Protection Laws, certain information that is reasonably required by ABBYY in the provision of 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 (including but not limited to collect, systematize, store for unlimited time, update, modify, use, distribute, transfer, depersonalize, lock, delete) in electronic or paper way for the purpose of providing You with the Service, sending You e-mail messages with information related to ABBYY’s activities. ABBYY guarantees that the data You provide will be stored strictly within ABBYY and will not be disclosed to any third parties except ABBYY affiliates or as expressly required or permitted by law and/or is necessary for the performance of this Agreement.

3.8. You hereby authorize ABBYY to send Your designated personnel 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.

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 You are solely responsible for any breach of laws, treaties, or regulations in connection with any Uploaded 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 failure or leads to the abnormal consumption of computing resources, or leads to other exceptional cases connected with functionality of Service, You consent to ABBYY’s use of such Uploaded Data for the sole purpose of improving the quality of the Service.

3.11. Except as otherwise provided herein, ABBYY will not access, review, use, publish, reproduce or disclose any of Your Uploaded data.

3.12. Location of Servers for the Site and Services. Your Data is stored and processed as indicated in the section 3.6 of this Agreement. ABBYY, alone, has the right and sole discretion, to determine the location of the servers of the Service within the territories indicated in the named section. 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 Services, You consent to any such transfer of data outside of Your country, for the purpose of enabling You to use the Service.

4. Pricing

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

4.2. Information regarding the prices will be provided by ABBYY’s Sales Team or Partner in the Invoice or commercial offer.

4.3. ABBYY may change the prices and payment procedure at any time, by giving notice thereof to You. Such revised prices and payment terms will be binding on You following the expiration of Your existing subscription for the Service, if, subsequent to the expiration of Your existing subscription for the Service, You continue to use the Service after the notice of the price increase has been delivered to You.

5. Terms of Payment

5.1. ABBYY or ABBYY Partner will send You an invoice for 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 the invoice receipt, 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. If You breache any provision of the Section 4 or 5 hereof, ABBYY has the right to impose on You a penalty for each week of delay amounting to fifteen hundredth percent (0,15%) of the amounts overdue, but in no case may the total penalty be more than one hundred percent (100%) of the amounts overdue.

5.4. Without prior written consent of ABBYY, You may not set off payment of the Service Fees with any and all amounts ABBYY may owe to You.

5.5. All payment obligations of You shall be deemed fulfilled when the sums due are credited to ABBYY's or the ABBYY Partner's bank account.

6. Confidentiality

6.1. You acknowledge that any written or oral information disclosed by ABBYY in relation to the Service, Administration & Monitoring Station and Service Storage is confidential information (hereinafter, “Confidential Information”).

6.2. You agree to maintain confidentiality of the Confidential Information and not to use or disclose such Confidential Information for five (5) years after the Effective Date except in the course of the performance of this Agreement.

6.3. You shall ensure that Your employees, agents and sub-contractors to whom Confidential Information of ABBYY is disclosed or who have access to Confidential Information of ABBYY sign a nondisclosure or similar agreement in content substantially similar to the confidentiality provisions of this Agreement. You agree that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree of care that You utilize to protect Your own Confidential Information of a similar nature. You agree to notify ABBYY in writing of any misuse or misappropriation of Confidential Information.

6.4. 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. Your Liability

You shall compensate ABBYY in full for any damage culpably caused by You breaching one or more of Your obligations under the Agreement, including but not limited to any damage caused by third parties who may have received access to the Service as a result of Your breach.

8. Technical Support

8.1. You may use the public ABBYY FlexiCapture Knowledgebase (http://help.abbyy.com/en-us/flexicapture/12/admin_guide/introduction_ag) 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.

8.2. Error means a defect in the Service, which leads to an abnormal termination of the Service execution.

8.3. Technical Support is the service rendered by ABBYY to You regarding possible Errors as well as for solving any problems with access and/or activation of the Service.

8.4. 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.

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

8.6. ABBYY agrees to make commercially reasonable efforts to take appropriate corrective actions in response to any Error report it may receive, given that You provide sufficient information in order for ABBYY to simulate the Error.

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

9. Termination

9.1. Term. This Agreement is effective upon the date You or Your Authorized Users (whichever occurs earlier) click the checkbox on the registration form accepting the terms and conditions of this Agreement, and will continue until terminated in accordance this section 9.

9.2. Without prejudice to ABBYY's other rights and remedies under the Agreement and/or the applicable law, ABBYY has the right to revoke Services, suspend the 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:

  • 9.2.1. You have open invoices and are not paying as regulated in Sections 4 and 5 hereof despite a prior written notice declaring the default of payment.
  • 9.2.2. You breach Sections 2, 3, 5, 6 and/or Section 12 of the Agreement;
  • 9.2.3. You become bankrupt or insolvent, or suffer any similar action in consequence of indebtedness or goes into voluntary or compulsory liquidation;
  • 9.2.4. 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.

9.3. 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.

9.4. The right of the parties to terminate the agreement for good cause remains unaffected.

9.5. Termination of the Service. When You or Authorized Users on behalf of You act (Your use of Service) in a bad faith or its actions may harm ABBYY, Service infrastructure, the Service itself or third parties ABBYY may deactivate Your or Authorized Users Account or the Tenant in general and remove all Your Data and Uploaded Data or may stop the Service without any written notice in case of including but not limited to the breach of this Agreement by You. In case of deactivation or stopping by ABBYY’s fault payments for non-used volume of the Service will be refunded.

9.6. You may contact ABBYY by e-mail at fc_cloud@abbyy.com to deactivate Your login (Account) and cease Your use of the Service at any time.

9.7. 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 contract 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.

10. Consequences of Termination

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

10.2. The expiry or earlier termination of the Agreement shall not have any effect on its provisions, which 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.

10.3. The following provisions will survive any expiration or termination of this Agreement: Sections 4, 5, 6, 11, and 13 as well as any indemnification obligations.

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

10.5. 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.

11. Copyrights and Trademarks

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

11.2. 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 to You a license to use these trademarks.

11.3. 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.

12. Limited Warranty and Disclaimers

12.1. 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.

12.2. 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.

12.3. 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.

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

12.5. 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 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) 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.

12.6. AS IS. The Service and all data are provided to You strictly on an "AS IS" basis without a warranty of any kind (“keine beschaffenheitsgarantie”) except a potential statutory warranty (kein ausschluss der gesetzlichen gewährleistungsansprüche). 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 and ABBYY’s licensors.

12.7. Service Level. Service level availability 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/. In the event that the Service Level is not met or less than 99%, ABBYY will calculate the period of time when the Service is not available to You due to reported incidents based on Incidents duration and ABBYY will credit You with corresponding number of pages.

12.8. ABBYY, at its sole discretion, may provide a partial refund or provide additional page volume if the guaranteed Service Level according to Article 12.7 is not met.

12.8.1. In order to be eligible for such compensation, You have to submit a Claim to ABBYY via e-mail fc_cloud@abbyy.com not later than 10 (ten) calendar days after the end of affected calendar quarter.

12.8.2. 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.

12.8.3. 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.

12.8.4. 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.

12.8.5. In the event 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.

12.9. Limitation of Liability. ABBYY's statutory liability for damages shall be limited as follows: (1) ABBYY shall be liable only up to the amount of damages as typically foreseeable at the time of entering into the purchase agreement in respect of damages caused by a slightly negligent breach of a material contractual obligation required for the appropriate execution of the agreement and (2) ABBYY shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation. ABBYY shall not bear any liability beyond the limits set above in this Section, especially not in cases of consequential damages, loss of revenue or profits, punitive damages or any other special damages.

The above limitation of liability also applies in respect of the personal liability of the employees, representatives and agents of ABBYY.

The limitation of liability set forth above shall not apply to any mandatory statutory liability, in particular, to liability under the German Product Liability Act, liability for assuming a specific guarantee, liability for damage arising from a grossly negligent breach of duty or liability for culpably caused injuries to life, body or health.

12.10. 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.

13. General

13.1. Insofar as no unreasonable disadvantages for You are associated therewith ABBYY may transfer its rights and obligations hereunder (or any part thereof) to a third party at any time without notice or Your consent.

13.2. If any claims or lawsuits are brought against You in connection with Your use of the Service, You shall inform ABBYY within 3 (three) days from the moment You learned of them. You shall carry out all the necessary actions to provide ABBYY with the possibility of taking part in the hearings of said claims or lawsuits in court, and to provide the information necessary for settlement of the corresponding claims or lawsuits, not later than in 7 (seven) days from the moment of reception of inquiry from ABBYY. You shall not make admissions (except under compulsion of law), agree to any settlement or otherwise compromise the defense or settlement of the claim without the prior written approval of ABBYY, which shall not be unreasonably withheld.

13.3. The following procedure shall be observed to resolve any dispute arising between You and ABBYY out of the use of the Service. 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) working 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 shall not respond to anonymous complaints or complaints from users who cannot be identified with the data they provided to register.

13.4. Defense of Claims. You will defend ABBYY from any actual or threatened third party claim arising out of or based upon:

  • (a) usage of Your Data;
  • (b) Your negligence or willful misconduct; or
  • (c) Your breach of this Agreement.

13.5. Intellectual Property Indemnification. You will indemnify ABBYY against:

  • (a) all damages, costs, and attorney fees finally awarded against ABBYY in any proceeding under Section 13.4;
  • (b) all out-of-pocket costs (including reasonable attorney fees) reasonably incurred by ABBYY 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 arising under Section 13.4 is settled, You will pay any amounts to any third party agreed to by You in settlement of any such claims.

13.6. 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.

13.7. 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.

13.8. 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.

13.9. 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.

13.10. Entire Agreement. This Agreement (along with any and 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.

13.11. Contact Us. Should You have any questions concerning this Agreement, or if You desire to contact ABBYY for any reason, please contact sales_eu@abbyy.com.

14. Miscellaneous Provisions

14.1. 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.

14.2. 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.

14.3. 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.

14.4. Unless otherwise provided herein, written notice to be given under this Agreement shall be in writing, sent by facsimile transmission or forwarded by first class prepaid registered or recorded delivery letter post to the recipient party at its mailing address as last notified in writing to the other party and shall be deemed to have been given on the date of the telex or facsimile transmission or on the day following that on which the notice was posted. The mailing addresses of ABBYY is set forth in this Agreement. Your mailing address is set forth in Your Account. Any notice to ABBYY shall be sent to this mailing address of ABBYY. In the case of change of address, the party whose address has changed shall provide written notification to the other party in respect of such change and communicate the new address to the other party.

14.5. All the terms and periods herein are calculated as calendar, unless otherwise expressly specified. If the last day of the period happens to be a not-working day either in the country of ABBYY or in Your country, such a period shall terminate on the first following working day.

14.6. ABBYY may list and publish in different materials and/or in the Internet Your name and in an index of clients/products that use technology developed by ABBYY.

14.7. 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 right; and (ii) otherwise have a material adverse impact on your rights under the Agreement, as reasonably determined by ABBYY. Before changes will take effect ABBYY informs you at least 30 days in advance (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 shall be entitled not to notify you about editorial changes.

15. 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.

16. Law and Construction

16.1. 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.

16.2. The parties, if You are a merchant, a legal person under public law, or a special asset (Sondervermögen) under public law, 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.

DATA PROCESSING ADDENDUM

Introduction:

  • (A) This Appendix A - Data Processing Addendum (“DPA”) specifies the data protection obligations of the Parties, as stipulated in ABBYY 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 personal data of the principal (“You”).
  • (B) This DPA sets out the additional terms, requirements and conditions on which ABBYY will process Personal 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”) for contracts between You who will be a Controller and ABBYY who will be a processor.

1. Definitions

ABBYY” has the same meaning under the Agreement.

Controller” 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 Germany Federal Data Protection Act 2017 (“BDSG”).

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

"Personal Data" means any information 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 the processor acting on behalf of You.

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

Instruction” means the written instruction, issued by You to Processor, 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 You 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. Interpretations and defined terms set forth in the Agreement apply to the interpretation of this Agreement.

The Annexes form part of this DPA and will have effect as if set out in full in the body of this Agreement. 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 Agreement 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; and
  • (c) any of the provisions of this DPA and any executed SCC, the provisions of the executed SCC will prevail.

2. Scope and Responsibility

2.1. You and ABBYY acknowledge that for the purpose of the Data Protection Laws, You are the controller and ABBYY is the processor. In some circumstances, You may be a processor, in which case You appoint ABBYY as Your sub-processor, which shall not change the obligations of either You or ABBYY under this DPA, as ABBYY will always remain a processor with respect to You in such event.

2.2. You retain control of the Personal Data and remain 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 collection and processing of Personal Data made available to or otherwise transferred to ABBYY, and for the processing instructions it gives to the ABBYY.

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

2.4. Based on this responsibility, You 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 Your cost. ABBYY shall promptly comply with any of Your 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 You.

3. ABBYY’s obligations

3.1. ABBYY shall collect, process and use Personal Data only within the scope of Your Instructions as set-out in this Agreement.

3.2. ABBYY shall keep the Personal Data confidential and shall ensure the reliability of its employees who have access to the Personal Data.

3.3. ABBYY will, at Your cost, reasonably assist You with meeting Your compliance obligations with respect to the rights exercised by Data Subjects under the Data Protection Legislation, taking into account the nature of Your processing and the information available to the ABBYY, as well as, where reasonably feasible for ABBYY and at Your costs, to undertake data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Laws.

3.4. ABBYY shall implement appropriate technical and organizational measures 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) Persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality,
  • (e) 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),
  • (f) 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),
  • (g) Personal Data Processed are Processed in accordance with the Instructions (control of instructions),
  • (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 (h) above shall be in particular, but shall not be limited to, the use of appropriate encryption technology. An overview of the above-entitled technical and organizational measures are listed in Annex 2.

3.5. ABBYY shall notify to You the contact details of ABBYY’s data protection officer. The ABBYY’s data protection official is:

  • Stefan Eisert SEDC
  • Tüv Süd Sec IT GmbH
  • Magdalenenweg 12
  • 85457 Wörth
  • Phone: 08123-928639
  • Mobile: 0171-4345367
  • Email: sedc1@web.de

3.6. If applicable, You 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 Your request, provide to You all information on Your Personal Data and information. ABBYY shall be obliged to securely delete any test and scrap material based on an Instruction issued by You on a case-by-case basis. Where You so decide, ABBYY shall hand over such material to You or store it on Your behalf.

3.7. ABBYY shall provide reasonable assistance to You with any data protection impact assessment which You are 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 You on request such information as is reasonably necessary to demonstrate its compliance with this DPA and shall reasonably allow for and contribute to audits, including inspections, conducted by You or another auditor mandated by You and approved by ABBYY for the purpose of demonstrating compliance by ABBYY with its obligations under Data Protection Laws in respect of the Personal Data.

3.8. ABBYY shall return or, and to the extent technically possible, at Your written request, delete and procure the deletion of all copies of the Personal Data after Processing by ABBYY of any Personal Data is no longer required for the purpose of ABBYY’s performance of its relevant obligations under this DPA.

4. Your obligations

4.1. You 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 the ABBYY under this Agreement.

4.2. You 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. You shall be obliged to maintain the publicly available register as defined in Article 30 of the GDPR.

4.4. You shall be responsible for fulfilling the duties to inform resulting from Articles 33 and 34 of the GDPR.

4.5. You shall promptly notify ABBYY of the exercise of any rights by Data Subjects affecting the Processing of Personal Data by ABBYY.

4.6. You 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.

4.7. 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 You.

5. Audit Obligations

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

6. Sub-processing

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

6.2. ABBYY undertakes to enter into a written agreement with any applicable sub-processors and such obligations will in no event be less protective than stated herein. ABBYY will restrict its sub-processors' access to only what is necessary to maintain the Service or to provide the Service to You. Processor 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 You, add or make changes to the sub-processors. You 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 You in its objection (which remove Your objection) and proceed to use the Sub-processor with regard to Personal Data; or
  • (c) ABBYY may cease to provide or You may agree not to use (temporarily or permanently) the particular aspect of the Service 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 Your objection, either party may terminate the Agreement and You will be entitled to a pro-rata refund for prepaid fees for Subscription Services not performed as of the date of termination.

ABBYY may replace a sub-processor if the need for the change is urgent and necessary to provide the Subscription Services and the reason for the change is beyond ABBYY’s reasonable control. In such instance, ABBYY shall notify You of the replacement as soon as reasonably practicable, and You shall retain the right to object to the replacement sub-processor pursuant to the above.

7. Data Breach

ABBYY will without undue delay notify You 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 You in handling of the matter.

ABBYY will not inform any third party of any Personal Data Breach without first obtaining Your prior written consent, except when required to do so by Data Protection Laws.

ABBYY agrees that You has the sole right, subject to Data Protection Laws, to determine:

  • (a) whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in Your discretion, including the contents and delivery method of the notice; and
  • (b) whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.

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

ABBYY will also reimburse You for actual reasonable expenses that You incur 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 Your 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 You without undue delay. ABBYY shall, without undue delay, notify to all pertinent parties in such action, that any Personal Data affected thereby is in Your sole property and area of responsibility that Personal Data is at Your 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 You for retrieval all relevant Personal Data (including copies) in ABBYY’s possession, save to the extent that ABBYY is required by any applicable 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.

8.5. ABBYY may change this DPA 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 degradation of the security of Your Data; (ii) expand the scope of, or remove any restrictions on, ABBYY Processing of Your Data; and (iii) otherwise have a material adverse impact on your rights under the DPA, as reasonably determined by ABBYY. Before changes will take effect ABBYY informs you at least 30 days in advance (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 DPA and stop using Service a. ABBYY shall be entitled not to notify you about editorial changes.

9. International Data Transfers

9.1. ABBYY shall be entitled to process Personal Data, including by using sub-processors, in accordance with this DPA outside the country in which the You are located as permitted under Data Protection Laws.

9.2. In such a case Your Personal Data may be subject to the laws of other countries, where the data protection may not be as comprehensive in the country of Your domicile or registered address. Before ABBYY sends Personal Data outside of the EEA or UK, ABBYY will use the appropriate safeguards to protect your Personal Data. Where

(i) Personal Data of an EEA, UK or Swiss based You are processed in a country outside the EEA, Switzerland, UK and any country, organization or territory acknowledged by the European Union as safe country with an adequate level of data protection under Art. 45 GDPR, or where

(ii) Personal Data of You are processed internationally and such international processing requires an adequacy means under the laws of the country of the You and the required adequacy means can be met by entering into Standard Contractual Clauses, then:

  • (a) ABBYY and You enter into the Standard Contractual Clauses;
  • (b) You enter into the Standard Contractual Clauses with each relevant Sub-processor;
  • (c) Other clients whose use of the Services has been authorized by You under the Agreement may also enter into Standard Contractual Clauses with ABBYY and/or the relevant sub-processors in the same manner as You in accordance with Sections 9.2(a) and (b) above. In such case, You will enter into the Standard Contractual Clauses on behalf of the other clients.

10. List of Personal Data elements and Purpose

The ABBYY provides for You the following service:

ABBYY FlexiCapture Cloud Service is a multitenant environment based on ABBYY FlexiCapture distributed application, which is hosted and managed by ABBYY on Microsoft Azure cloud and allows its users to perform document classification and data extraction tasks from the diverse document types using OCR (optical character recognition) technology.

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)

  • • Contact Data
  • • Key Contract Data (Contractual/Legal Relationships, Contractual or Product Interest)
  • • Customer History
  • • Contract Billing and Payments Data
  • • Disclosed Information from third parties, e.g. names, addresses, telephones, emails
  • • Financial Data, e.g. account numbers

You shall be liable for any personal data that is provided or otherwise made available to the ABBYY in excess of the categories of data described above ("Excess Data"). ABBYY obligations under the Agreement of this DPA shall not apply to any such Excess Data.

The following people and groups of people are affected:

The Categories of Data Subjects comprise:

  • • Employees
  • • Contact Persons
  • • Customers
  • • Potential Customers
  • • Your Employees
  • • Suppliers and Contractors
  • • Contact Persons, Employees and Representatives categories mentioned above in
  • • Other Data Subjects about whom information included in Sample Data provided by the Client

Annex 1

1. Subprocessors

1. Client acknowledges that ABBYY’s contractual obligations hereunder will be performed by sub-processors, namely:

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

Annex 2

1. Technical and organizational measures

1.1. Technical and organizational measures of the Processor:

  • The ABBYY will process the data in the European Union only.
  • The ABBYY and the You agree that the technical and organizational measures of the data center operator 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. The ABBYY will inform without any further delay You about any changes of the security guidelines of the data center operator.
  • Multiple authorization levels are used when granting access to sensitive systems, including those storing and processing Personal Data. Processes are in place to ensure that authorized users have the appropriate authorization to add, delete, or modify users.
  • All users access ABBYY’s systems with a unique identifier (user ID).

1.2. Technical and organizational measures of the data center: